[неофициальный перевод]
ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА
СУДЕБНОЕ РЕШЕНИЕ
ДЕ ХАЭС (DE HAES) И ГИЙСЕЛС (GIJSELS) ПРОТИВ БЕЛЬГИИ
(Страсбург, 24 февраля 1997 года)
(Извлечение)
КРАТКОЕ НЕОФИЦИАЛЬНОЕ ИЗЛОЖЕНИЕ ОБСТОЯТЕЛЬСТВ ДЕЛА
A. Основные факты
Во время событий, о которых идет речь в данном деле,
г-н Лео Де Хаэс и г-н Хуго Гийселс работали соответственно
редактором и журналистом еженедельника "Хум".
В июне - ноябре 1986 г. они опубликовали пять статей, в
которых обстоятельно и в весьма резких выражениях критиковали
четырех магистратов - трех судей и генерального адвоката
апелляционного суда Антверпена за то, что в деле о разводе они
вынесли решение оставить детей при отце, неком г-не X, бельгийском
нотариусе. Жена, тесть и теща г-на X обвиняли его в инцесте и
совращении детей. В статьях, о которых идет речь, указанные судьи
и генеральный адвокат были обвинены в пристрастности и
попустительстве г-ну X, чью симпатию к правоэкстремистским
движениям они якобы разделяли.
Г-н X возбудил дело о диффамации, но проиграл его. Упомянутые
в статьях судьи и генеральный адвокат предъявили заявителям и
некоторым другим сотрудникам еженедельника иск в суд первой
инстанции Брюсселя. Они жаловались, что утверждения г-на Де Хаэса
и г-на Гийселса носили оскорбительный и диффамационный характер, и
потребовали номинального возмещения ущерба в один франк, а также
публикации Судебного решения в еженедельнике "Хум" и шести
ежедневных газетах за счет ответчиков.
В ходе судебного разбирательства ответчики безуспешно пытались
добиться представления документов из досье бракоразводного
процесса г-на X, упомянутых в обжалуемых статьях, в частности
отчетов некоторых экспертов о состоянии здоровья детей.
29 сентября 1988 г. суд вынес Решение в пользу истцов, указав, что
они стали жертвами неоправданных нападок на их честь и репутацию.
Заявители обжаловали это Решение, вновь безуспешно пытаясь
добиться представления документов и заслушивания свидетелей, чтобы
подтвердить истинность содержавшихся в статьях утверждений.
5 февраля 1990 г. апелляционный суд Брюсселя оставил в силе
Решение суда первой инстанции.
13 сентября 1991 г. кассационный суд отклонил жалобу
заявителей по вопросам права.
B. Разбирательство в Комиссии по правам человека
Поданная 12 марта 1992 г. жалоба на нарушение статьи 10
(свобода слова) и статьи 6 п. 1 (справедливое судебное
разбирательство) была объявлена Комиссией приемлемой 24 февраля
1995 г.
В своем докладе от 29 ноября 1995 г. Комиссия установила факты
и выразила мнение, что были нарушены статья 10 (шестью голосами
против трех) и статья 6 п. 1 (единогласно).
Комиссия передала дело в Суд 25 января 1996 г.
ИЗВЛЕЧЕНИЕ ИЗ СУДЕБНОГО РЕШЕНИЯ
ВОПРОСЫ ПРАВА
I. О предполагаемом нарушении статьи 10 Конвенции
32. Заявители утверждали, что вынесенные против них Решения
суда первой инстанции и апелляционного суда повлекли нарушение
статьи 10 Конвенции, которая гласит:
"1. Каждый человек имеет право на свободу выражать свое
мнение. Это право включает свободу придерживаться своего мнения и
свободу получать и распространять информацию и идеи без
какого-либо вмешательства со стороны государственных органов и
независимо от государственных границ. Настоящая статья не
препятствует государствам осуществлять лицензирование
радиовещательных, телевизионных или кинематографических
предприятий.
2. Осуществление этих свобод, налагающее обязанности и
ответственность, может быть сопряжено с формальностями, условиями,
ограничениями или санкциями, которые установлены законом и которые
необходимы в демократическом обществе в интересах государственной
безопасности, территориальной целостности или общественного
спокойствия, в целях предотвращения беспорядков и преступлений,
для охраны здоровья и нравственности, защиты репутации или прав
других лиц, предотвращения разглашения информации, полученной
конфиденциально, или обеспечения авторитета и беспристрастности
правосудия".
33. По мнению заявителей, Судебное решение, несомненно, должно
рассматриваться как "вмешательство" в осуществление ими свободы
слова. Очевидно, что вмешательство было "предусмотрено законом" и
преследовало по крайней мере одну из правомерных целей, о которых
говорится в статье 10 п. 2, - защиту репутации или прав других
лиц, в данном случае прав судей и генерального адвоката,
предъявивших иск.
Суд согласен с этим. Теперь следует установить, было ли такое
вмешательство "необходимым в демократическом обществе" для
достижения указанной цели.
34. Г-н Де Хаэс и г-н Гийселс подчеркнули, что их статьи
вписываются в публичную дискуссию, которая велась и на страницах
других газет, о кровосмешении и о том, как судебные власти
подходят к данной проблеме. Они провели достаточную
подготовительную работу: было запрошено мнение нескольких
экспертов, что позволило им строить свои статьи на объективных
доказательствах. Единственная причина, по которой они не
представили эти доказательства в суде, состоит в том, что они не
хотели раскрывать источники своей информации. Отказ брюссельских
судов как первой инстанции, так и апелляционного допустить в
качестве доказательства упомянутые документы привел,
соответственно, к нарушению статьи 10.
Что касается критики магистратов, она не может служить
основанием для наказания только потому, что критические замечания
расходились с решениями апелляционного суда Антверпена.
Установление "судебной истины" не означает, что любое другое
мнение должно рассматриваться как ложное. Однако именно это и
случилось в данном деле, хотя спорные статьи и основывались на
достаточно объективной информации. Короче говоря, обжалуемое
вмешательство не было необходимым в демократическом обществе.
35. Комиссия по существу приняла эту аргументацию.
36. Правительство утверждало, что оспариваемые публикации в
прессе были далеки от того, чтобы стимулировать дискуссию о
функционировании судебной системы в Бельгии, и содержали лишь
личные оскорбления, направленные против магистратов Антверпена, а
потому не заслуживали повышенной защиты, действующей, когда речь
идет о политических взглядах. Журналисты не могут претендовать на
иммунитет только на том основании, что достоверность их
высказываний не может быть проверена. В данном случае авторы
статей понесли наказание за то, что преступили грань допустимой
критики. Было вполне возможным возражать против того, как суд
рассмотрел дело против г-на X, не прибегая в то же время к
нападкам личностного характера на магистратов и не обвиняя их в
предвзятости и "отсутствии независимости". В этой связи следует
также иметь в виду, что возлагаемая на служителей правосудия
обязанность проявлять сдержанность не позволяет им реагировать и
защищать себя так, как это делают, например, политики.
37. Суд подчеркнул, что пресса играет важнейшую роль в
демократическом обществе. Хотя она и не должна преступать
определенных границ, в частности уважения репутации и права других
лиц, тем не менее ее долг состоит в том, чтобы сообщать - любым
способом, который не противоречит ее обязанностям и
ответственности, - информацию и идеи по всем вопросам,
представляющим общественный интерес, включая и те, которые
относятся к функционированию судебных органов.
Суды - гаранты правосудия, их роль является ключевой в
государстве, основанном на верховенстве закона. Поэтому они должны
пользоваться доверием общественности и соответственно быть
защищены от ничем не обоснованных нападок, особенно имея в виду то
обстоятельство, что на судьях лежит долг сдержанности, который
мешает им ответить на критику.
В этом вопросе, как и в других, в первую очередь национальным
властям надлежит определить необходимость вмешательства в
осуществление свободы слова. Однако то, что они могут сделать в
этой связи, находится под европейским контролем, охватывающим как
закон, так и его применение даже тогда, когда решения выносят
независимые суды (см. mutatis mutandis Решение по делу Прагер и
Обершлик против Австрии от 26 апреля 1995 г. Серия A, т. 313,
с. 17 - 18, п. 34 - 35).
38. Суд прежде всего отмечает, что Судебное решение против
заявителей было основано на всех статьях о деле X, опубликованных
ими в период между 26 июня и 27 ноября 1986 г.
Это должно быть учтено в целях оценки масштабов и
необходимости обжалуемого вмешательства.
39. В статьях содержится масса подробной информации об
обстоятельствах, в которых принималось решение о том, чтобы
оставить детей при отце. Эта информация основывалась на тщательном
изучении всех обвинений против г-на X и мнении нескольких
экспертов.
Даже апелляционный суд Антверпена посчитал, что у жены, тестя
и тещи г-на X, обвиненных в диффамации, "не было основательных
причин сомневаться в достоверности фактов", о которых идет речь
(см. п. 8 выше).
Раз это так, то заявителей нельзя упрекнуть в том, что они
проявили недобросовестность при исполнении своих профессиональных
обязанностей, опубликовав то, что они узнали по делу. На прессе
лежит долг сообщать информацию и идеи, представляющие общественный
интерес. Ее задаче сообщать такую информацию и идеи соответствует
право общественности получать их (см. среди других источников
Решение по делу Йерсилд против Дании от 23 сентября 1994 г.
Серия A, т. 298, с. 23, п. 31, и Судебное решение по делу Гудвин
против Соединенного Королевства от 27 марта 1996 г. Reports,
1996-II, с. 500, п. 39). Это особенно справедливо в отношении
настоящего дела, учитывая серьезность обвинений, которые касаются
как судьбы малолетних детей, так и функционирования системы
правосудия в Антверпене. Более того, заявители высказались на этот
счет совершенно ясно в своей статье от 18 сентября 1986 г.:
"Прессе не подобает брать на себя роль суда, но в этом
вопиющем случае хранить молчание невозможно и немыслимо"
(см. п. 21 выше).
40. Более того, следует отметить, что возбудившие дело
магистраты ни в суде первой инстанции, ни в апелляционном суде не
попытались поставить под сомнение опубликованную информацию об
участи детей г-на X. Было заявлено только, что указанное дело
изъято из производства в судах Антверпена (см. п. 22 и 23 выше).
Однако значимость последнего обстоятельства в сравнении с
оспариваемыми статьями в целом означает, что данный инцидент сам
по себе не может поставить под сомнение серьезность проделанной
журналистами работы.
41. По сути дела, судьи и генеральный адвокат жаловались
главным образом на нападки личного характера, которым, как они
считали, их подвергли в журналистских комментариях по поводу
перипетий процедуры, в итоге которой дети остались при г-не X.
Обвинив их в явной предвзятости и трусости, журналисты, по мнению
магистратов, позволили себе замечания диффамационного характера,
оскорбительные для их достоинства. Кроме того, заявители обвинили
двоих из них в неприкрытых симпатиях к ультраправым, грубо нарушив
тем самым право на уважение их частной жизни.
Суды Брюсселя, по существу, подписались под этими
утверждениями (см. п. 11 и 14 выше). Апелляционный суд обвинил
заявителей главным образом в том, что они выступили с
бездоказательными заявлениями по поводу частной жизни магистратов,
а также в том, что утверждение о их предвзятости при рассмотрении
дела о детях г-на X имеет диффамационный характер. В Судебном
решении сказано:
"В данном деле заявители осмелились пойти еще дальше,
бездоказательно утверждая, что предвзятость связана с личностями
судей и генерального адвоката. Тем самым они вторглись в их
частную жизнь, что, без сомнения, противозаконно.
Кроме того, цель настоящего судебного разбирательства не в
том, чтобы решить, в чем заключается в конечном счете объективная
истина по делу, а лишь в том, можно ли считать рассматриваемые
комментарии клеветническими, в чем нет ни малейшего сомнения"
(см. п. 14 выше).
42. Суд подчеркивает, что следует проводить четкое различие
между фактами и оценочными суждениями. Существование фактов можно
доказать, тогда как справедливость оценочных суждений нельзя (см.
Решение по делу Лингенс против Австрии от 8 июля 1986 г. Серия A,
т. 103, с. 28, п. 46).
43. Говоря о заявлениях относительно политических симпатий
некоторых магистратов - истцов, апелляционный суд Брюсселя указал:
"Даже если апеллянты полагали возможным приписать ответчикам
определенные идеологические взгляды (наличие которых у них они не
сумели доказать), это не позволяет им в любом случае - даже если
бы это было ими доказано - делать отсюда прямой вывод о том, что
магистраты не были беспристрастны, и критиковать такую
предвзятость публично" (см. п. 14 выше).
Отсюда следует, что, даже если бы утверждения, о которых идет
речь, были правильными, заявителям не удалось бы избежать
ответственности, поскольку она возлагалась на них не за
распространение фактов, а за комментарии, которые они вызвали у
журналистов.
44. В дополнение к информации, которую заявителям удалось
собрать о поведении г-на X в отношении своих детей, которая сама
по себе оправдывает критику тех решений, которые были приняты
судьями и генеральным адвокатом или с их помощью, заявители
указали и на политические симпатии магистратов, полагая, что эти
симпатии имели определенное отношение к вынесенным решениям.
45. Одно из утверждений по поводу предполагаемых политических
симпатий было неприемлемым; оно касалось прошлого отца одного из
судей (см. п. 19 выше). Нельзя считать приемлемым, когда человека
дискредитируют за то, что произошло с одним из членов его семьи.
Санкция оправданна по причине одного такого утверждения.
Однако это был лишь один из эпизодов по данному делу.
Заявители были осуждены за всю совокупность обвинений в
предвзятости в отношении магистратов, о которых идет речь.
46. В этой связи Суд подчеркивает, что свобода слова
применяется не только к "информации" или "идеям", которые
принимаются благосклонно, считаются безобидными или безразличными,
но также и к той, которая обижает, шокирует или причиняет
беспокойство государству или любой части общества. Кроме того,
журналистская свобода включает также возможность прибегнуть к
некоторой степени преувеличения или даже провокации (см. mutatis
mutandis вышеупомянутое Решение по делу Прагера и Обершлика,
с. 19, п. 38).
47. Если взглянуть на вещи в контексте данного дела, то
обвинения, о которых идет речь, представляют собой не более чем
мнения, истинность которых нельзя доказать по определению. Однако
такое мнение может быть преувеличенным, в особенности при
отсутствии какой-либо фактической основы, но в данном случае
такого не было; в этом отношении настоящее дело отличается от дела
Прагера и Обершлика (см. вышеупомянутое Решение, с. 18, п. 37).
48. Хотя комментарии г-на Де Хаэса и г-на Гийселса,
несомненно, были резко критическими, они тем не менее
представляются соразмерными волнению и негодованию, вызванному
фактами, приведенными в статьях. Относительно полемичного и даже
агрессивного тона статей - чего Суд не одобрил, - следует помнить,
что статья 10 защищает не только содержание идей и информации, но
также и форму, в которой они выражены (см. вышеупомянутое Решение
по делу Йерсилда, с. 23, п. 31).
49. В заключение, Суд считает, что с учетом серьезности
обстоятельств дела необходимость вмешательства в осуществление
заявителями их свободы слова не была доказана, за исключением
того, что касается утверждений относительно прошлого отца одного
из судей (см. п. 45 выше).
Таким образом, имело место нарушение статьи 10.
II. О предполагаемом нарушении статьи 6 Конвенции
50. Заявители жаловались также на нарушение статьи 6 п. 1,
которая предусматривает:
"Каждый человек имеет право при определении его гражданских
прав и обязанностей... на справедливое... разбирательство дела...
беспристрастным судом..."
Они, во-первых, критиковали суд первой инстанции и
апелляционный суд Брюсселя за отказ допустить в качестве
доказательств документы, на которых основываются оспариваемые
статьи, или заслушать по крайней мере некоторых свидетелей
(см. п. 10 и 12 выше). Это, по их мнению, привело к изначальному
неравенству между, с одной стороны, магистратами, которые были
знакомы с досье, а с другой - журналистами, которые пользовались
лишь ограниченным числом источников.
Более того, приводя аргументы против заявителей на основании
их статьи от 14 октября 1988 г. (см. п. 24 выше), апелляционный
суд Брюсселя вынес Решение uetra petita, т.к. судьи,
критиковавшиеся в этой статье, не были сторонами по делу, в
апелляционном суде, а их решение, вынесенное в первой инстанции,
цитировалось неточно. Таким образом, апелляционный суд основывался
на факте, который не стал предметом состязательной процедуры, что
явилось нарушением права на защиту.
И последнее, уничижительные выражения в решении апелляционного
суда Брюсселя свидетельствуют об отсутствии субъективной
беспристрастности вынесших его судей.
51. Комиссия, по существу, разделила мнение заявителей по
поводу последствий предполагаемого нарушения равенства сторон и
надлежащей правовой процедуры. Она не сочла необходимым выразить
какую-либо точку зрения по поводу беспристрастности апелляционного
суда Брюсселя.
52. Правительство утверждало, что доказательства, которые
предлагали представить журналисты, были рассчитаны на то, чтобы
поставить под вопрос Решения по делу г-на X и его жены, т.е. res
judicata. Поэтому суды Брюсселя имели все основания отвергнуть их,
считая, что "установленная судом истина" была достаточно ясна из
Решений, вынесенных по делу г-на X. Короче говоря, представление
доказательств, о которых идет речь, не имело решающего значения по
делу, что и подтвердил Кассационный суд.
Что касается ссылки апелляционного суда на опубликованную в
прессе статью от 14 октября 1988 г., то она носила побочный
характер, т.к. Судебное решение против заявителей исходило из
других оснований. Ссылки на эту статью в исковых заявлениях
магистратов должны были лишь демонстрировать враждебность
журналистов.
53. Суд подчеркивает, что принцип равенства сторон - составной
элемент более емкого понятия справедливого судебного
разбирательства - требует, чтобы каждой из сторон была
предоставлена разумная возможность представить свое дело в таких
условиях, которые не ставят ее в существенно менее благоприятное
положение в сравнении с оппонентом (см. среди других источников
Решение по делу Анкерл против Швейцарии от 23 октября 1996 г.
Reports, 1996-V, с. 1565 - 1566, п. 38).
54. Суд отмечает, что в своих обращениях в суд первой
инстанции Брюсселя и в апелляционный суд указанные судьи и
генеральный адвокат утверждали, что критика в их адрес в
еженедельнике "Хум" не соответствует фактам по делу и вынесенным
ими или при их помощи четырем Судебным решениям по этому делу.
Таким образом, отрицая наличие какой-либо основы в аргументации
журналистов, они сослались на содержание дела, которое они сами
рассматривали, и на соответствующие Судебные решения.
Ссылка, исходившая от судей и генерального адвоката, которые
участвовали в рассмотрении этого дела, звучала не так убедительно,
чтобы ее можно было всерьез оспорить в судах, если ответчики
лишены возможности представить хотя бы некоторые относящиеся к
делу дополнительные документы или свидетельские показания.
55. В этом отношении Суд не разделяет мнение апелляционного
суда Брюсселя, что требование о представлении документов
свидетельствовало об отсутствии осторожности при подготовке
заявителями их статей. Забота журналистов о том, чтобы не
скомпрометировать свои источники информации, представив документы,
о которых идет речь, была правомерна (см. mutatis mutandis
вышеупомянутое Решение по делу Гудвин против Соединенного
Королевства. Reports, 1996-II, с. 502, п. 45). Более того, в их
статьях содержалось такое количество подробностей о судьбе детей
г-на X и данных их медицинских обследований, что имеются разумные
основания предположить, что их авторы располагали по крайней мере
некоторой информацией, относящейся к делу.
56. Следует также отметить, что доводы журналистов вряд ли
были совершенно необоснованными, т.к. еще до рассмотрения выдержек
из их статей суд первой инстанции Антверпена и апелляционный суд
Антверпена отказали г-ну X в возбуждении дела о клевете против его
жены, тестя и тещи, не увидев для этого оснований (см. п. 8 выше).
57. Во всяком случае судебное дело, возбужденное против
заявителей судьями и генеральным адвокатом, не относилось к
существу Судебного решения по делу г-на X, а касалось единственно
вопроса о том, имели ли в подобных обстоятельствах заявители право
выражать свое мнение так, как они это сделали. Для того чтобы дать
ответ на этот вопрос, нет необходимости изучать все судебное досье
по делу г-на X; важны только те документы, которые, вероятно,
могли доказать или опровергнуть истинность утверждений
журналистов.
58. Именно об этом они и просили Брюссельский суд первой
инстанции и апелляционный суд Брюсселя - ознакомиться с мнением
трех учителей, от которых были получены сведения, побудившие
заявителей написать свои статьи (см. п. 10 выше). Окончательный
отказ удовлетворить их ходатайство поставил журналистов в
существенно менее выгодное положение, чем истцов. Таким образом,
имело место нарушение принципа равенства сторон.
59. Уже одно это обстоятельство является нарушением статьи 6
п. 1. Вследствие этого Суд не видит необходимости в рассмотрении
других жалоб, предъявленных заявителями на основании этой статьи.
III. Применение статьи 50 Конвенции
60. Статья 50 Конвенции предусматривает:
"Если Суд установит, что решение или мера, принятые судебными
или иными властями Высокой Договаривающейся Стороны, полностью или
частично противоречат обязательствам, вытекающим из настоящей
Конвенции, а также если внутреннее право упомянутой Стороны
допускает лишь частичное возмещение последствий такого решения или
такой меры, то решением Суда, если в этом есть необходимость,
предусматривается справедливое возмещение потерпевшей стороне".
A. Материальный ущерб
61. Заявители потребовали 113101 бельгийский франк в
возмещение материального ущерба. Эта сумма соответствует стоимости
публикации Решения апелляционного суда Брюсселя от 5 февраля
1990 г. в "Хум" плюс "еще один франк" за публикацию того же самого
Решения в шести ежедневных газетах, которая еще не состоялась.
62. По этому поводу не поступило никаких замечаний ни от
делегатов Комиссии, ни от Правительства.
63. Так как публикация Судебного решения была прямым
следствием вынесения неправомерного постановления против
заявителей, Суд считает данное требование оправданным.
B. Моральный вред
64. Журналисты потребовали также компенсацию в размере
500 тысяч бельгийских франков каждый за моральный вред,
причиненный им негативной оглаской и психологическим дискомфортом,
которые последовали за их осуждением.
65. Правительство считает, что признание Судом нарушения
является достаточной компенсацией морального вреда, понесенного
заявителями.
Делегат Комиссии точки зрения не высказал.
66. По мнению Суда, решения бельгийских судов против
заявителей должны были вызвать у них определенные неприятные
переживания. Однако сам факт признания нарушения Конвенции
является достаточным справедливым возмещением морального вреда.
C. Издержки и расходы
67. Г-н Де Хаэс и г-н Гийселс потребовали 851697 бельгийских
франков за издержки и расходы, относящиеся к их юридическому
представительству, а именно 332031 бельгийский франк за процесс в
национальных судах и 519666 бельгийских франков за процесс в
учреждениях Конвенции, включая 179666 бельгийских франков,
потраченных на перевод.
68. Замечаний ни от делегатов Комиссии, ни от Правительства не
поступило.
69. Соответственно, Суд удовлетворяет это требование.
D. Проценты за просрочку
70. Согласно имеющейся у Суда информации, установленная
законом процентная ставка, которая действовала в Бельгии на дату
принятия настоящего Судебного решения, составляет 7% годовых.
ПО ЭТИМ ОСНОВАНИЯМ СУД
1. Постановил семью голосами против двух, что имело место
нарушение статьи 10 Конвенции;
2. Постановил единогласно, что имело место нарушение статьи 6
п. 1 Конвенции;
3. Постановил единогласно, что государство - ответчик должно
выплатить заявителям в течение трех месяцев 113101 (сто тринадцать
тысяч сто один) бельгийский франк за материальный ущерб и 851697
(восемьсот пятьдесят одну тысячу шестьсот девяносто семь)
бельгийских франков за издержки и расходы, на которые по истечении
вышеуказанного трехмесячного периода выплачиваются простые
проценты из расчета 7% годовых вплоть до полного расчета;
4. Постановил единогласно, что настоящее Судебное решение само
по себе составляет достаточно справедливое возмещение за
понесенный моральный ущерб.
Совершено на английском и французском языках и оглашено во
Дворце прав человека в Страсбурге 24 февраля 1997 г.
Председатель
Рольф РИССДАЛ
Грефье
Герберт ПЕТЦОЛЬД
В соответствии со статьей 51 п. 2 Конвенции и 55 п. 2
Регламента Суда B к настоящему Решению прилагаются отдельные
мнения судей.
ЧАСТИЧНО ОСОБОЕ МНЕНИЕ СУДЬИ МАТШЕРА
Я не могу согласиться с большинством Палаты в том, что она
усмотрела нарушение статьи 10.
Полностью подписываясь под всем сказанным Палатой по поводу
свободы слова и, в частности, в отношении значения свободы печати
в демократическом обществе, я считаю, что Палата не смогла
осознать границ этой свободы, что также весьма существенно в
демократическом обществе. И в самом деле, содержащаяся в статье 10
п. 2 ссылка на "обязанности и ответственность", что является
неотъемлемой принадлежностью свободы печати, по-видимому, не имеет
большого значения для Суда.
Применяя эти принципы к настоящему случаю, я хотел бы сделать
следующие замечания.
Заявители вправе критиковать Решение апелляционного суда
Антверпена, оставившего детей при г-не X, т.к. имевшаяся в их
распоряжении объективная информация оправдывала самую суровую
критику такого Решения; с учетом обстоятельств дела и вправду
правомерно было задаться вопросом: как могли судьи принять такое
решение?
В чем я нахожу ошибку в опубликованных прессой статьях,
ошибку, за которую заявителям пришлось нести ответственность -
хотя и сугубо номинальную, - это необоснованное обвинение судей,
вынесших это решение, в том, что они действовали умышленно и
недобросовестно из-за своих политических или идеологических
симпатий, нарушив тем самым свой долг независимости и
беспристрастности, и все это с целью защитить кого-то, чьи
политические представления, по-видимому, схожи с теми, что имеются
у самих судей. Ничто не оправдывало подобную инсинуацию, даже если
бы представлялось возможным установить, придерживались ли эти
судьи политических взглядов, о которых идет речь.
В подобных обстоятельствах вмешательство в виде Судебного
решения, направленного против заявителей, представлялось
"необходимым" в смысле статьи 10 п. 2 и не было несоразмерным.
ЧАСТИЧНО ОСОБОЕ МНЕНИЕ СУДЬИ МОРЕНИЛЛЫ
1. К моему сожалению, я не могу согласиться с выводом
большинства о нарушении статьи 10 Конвенции в данном случае. По
моему мнению, решение бельгийских судов, осудивших заявителей за
диффамацию, было необходимым в демократическом обществе и
соразмерным в том смысле, как это понимается в статье 10 п. 2.
В оспариваемых решениях Брюссельского суда первой инстанции,
апелляционного суда Брюсселя и Кассационного суда было
установлено, что ответчики - журналисты совершили недозволенные
действия. С них было взыскано в пользу каждого из четырех истцов -
магистратов апелляционного суда Антверпена - по одному франку за
причиненный моральный ущерб и им было приказано опубликовать
полностью судебное решение в еженедельном журнале "Хум", том
самом, где ранее, в период между июлем и ноябрем 1986 г., были
опубликованы пять статей, критиковавших судебные решения,
вынесенные указанными судами, в выражениях, которые судьи
посчитали оскорбительными и порочащими их. Истцам было также
предписано опубликовать данное Судебное решение в шести ежедневных
газетах за счет заявителей.
Решения, ставшие предметом разбирательства, были вынесены в
ходе бракоразводного процесса, в результате которого апелляционный
суд оставил детей при отце, несмотря на утверждения матери, что он
вступил с ними в кровосмесительную связь и дурно с ними обращался.
2. Как и большинство, я придерживаюсь той точки зрения, что
оспариваемые решения, несомненно, были равносильны вмешательству в
осуществление заявителями их права на свободу слова, включая
свободу иметь мнение и право распространять информацию, что
воплощено в статье 10 Конвенции. Возможность такого вмешательства
предусмотрена статьей 1382 и последующими Гражданского кодекса
Бельгии и преследует цель защитить репутацию других лиц - в данном
случае судей апелляционного суда, а также обеспечить авторитет и
беспристрастность правосудия; все это законные цели,
соответствующие статье 10 п. 2 Конвенции.
3. Необходимость осуждения заявителей, таким образом, является
заключительным условием, которому должно удовлетворять
вмешательство, чтобы быть в демократическом обществе признанным
правомерным в соответствии со статьей 10 п. 2 Конвенции. Это также
и единственная причина моего расхождения с большинством, которое
сочло, что данная мера не является ни необходимой, ни соразмерной,
имея в виду ту основополагающую роль, которую выполняет пресса в
государстве, где признается верховенство закона, а также
принципиальную уместность критики в адрес функционирования системы
правосудия.
4. Однако, с моей точки зрения, статьи, о которых идет речь,
помимо критики Судебного решения по бракоразводному делу содержали
оценки судебной системы Бельгии вообще, политических взглядов
членов апелляционного суда Антверпена, а также высказывания о
прошлом отца одного из судей. Я считаю эти комментарии
оскорбительными для судейского корпуса Бельгии и диффамационными в
отношении магистратов апелляционного суда. Последних заявители
обвинили в умышленном вынесении несправедливого решения по причине
дружбы или политической близости к одной из сторон судебного
процесса, что равносильно обвинению в злоупотреблении должностным
положением.
5. Статья содержит такие, например, выражения:
"Двое детей раздавлены неумолимыми челюстями слепого
правосудия. Кровосмешение во Фландрии получает оправдание" или
"Большинство судей Третьего отделения апелляционного суда, которые
оставили детей у нотариуса, принадлежат к кругам, близким правому
экстремизму. Судья [YB] - сын большой "шишки" в жандармерии,
который в 1948 г. осужден за коллаборационизм... Так ли уж
случайно, что у генерального прокурора [YJ] такие же политические
пристрастия, что и у семейства X" (первая статья от 26 июня
1986 г.).
"Половина Фландрии шокирована столь извращенным правосудием".
"Такого рода система грубого нагнетания давления, по-видимому,
очень хорошо срабатывает в рамках нашей системы правосудия".
"Благодаря новым данным перед нами теперь более четкая картина
того, сколь часто и как вероломно суды манипулировали делом"
(вторая статья от 17 июля 1986 г.). "Главный гарант нашей
демократии, независимая судебная система, оказалась подорванной у
самого основания" (третья статья от 18 сентября 1986 г.).
"Стыдно, что суды Антверпена отказываются считаться с этими
доказательствами" (пятая статья от 27 ноября 1986 г.).
6. Рассматривая жалобу по другому делу (вышеупомянутое Решение
по делу Прагер и Обершлик против Австрии от 26 апреля 1995 г.
(Серия A, т. 136), весьма похожему на данное, в результате
которого журналист и издатель были осуждены в уголовном порядке за
диффамацию судьи, Суд подчеркнул необходимость найти правильный
баланс между ролью прессы по распространению информации,
представляющей общественный интерес, как-то: функционирование
системы правосудия, с одной стороны, а с другой - защита репутации
других лиц, "особой роли судейского корпуса в обществе", где "в
качестве гаранта правосудия, основополагающей ценности в правовом
государстве, он должен пользоваться общественным доверием, если
намерен и далее успешно выполнять свои обязанности" (п. 34).
7. Этот аспект свободы печати не только совместим со свободой
слова, но и призван придать ей объективность, соблюдение которой
необходимо, чтобы обеспечить правдивость и серьезность информации
о функционировании судебной системы. Как сказал Суд по делу
Прагера и Обершлика: "Поэтому может оказаться нужным защитить
такое доверие от разрушительных атак, которые в значительной мере
необоснованны, особенно имея в виду то обстоятельство, что на
судьях, которых подвергли критике, лежит долг сдержанности, что
мешает им ответить" (там же).
8. В этом же Решении Суд сказал: "Оценка этих факторов
принадлежит прежде всего национальным властям, которые пользуются
определенной сферой усмотрения при определении наличия оснований и
степени необходимости вмешательства в осуществление свободы
слова". Однако установление пределов такой оценки принадлежит
европейскому контролю (п. 35). Рассматривая эти вопросы в свете
Конвенции, Суд должен принимать в расчет то обстоятельство, что
"пресса является одним из инструментов, с помощью которого
политики и общественное мнение могут удостовериться, что судьи
осуществляют свои нелегкие обязанности в полном соответствии с той
целью, которая лежит в основе возложенной на них задачи" (п. 34).
9. С моей точки зрения, решение о том, как квалифицировать
упомянутые в оспариваемых судебных решениях выдержки, касающиеся
отсутствия беспристрастности магистратов апелляционного суда
Антверпена, относится к сфере усмотрения национальных судов.
Допущенные заявителями высказывания были равносильны оценочным
суждениям о политических взглядах, о том воздействии, которое
оказали эти взгляды и семейное происхождение судей на
комментируемые в статьях решения. Такие оценочные суждения нелегко
доказать, и они не могут служить оправданием для огульных
обвинений, а также злобности и уничижительного характера
используемых выражений.
10. Обжалуемые Судебные решения имели своим предметом не
критику "подлинности" фактов, установленных в ходе бракоразводного
процесса, и не законность вынесенных судьями решений, а позорящие
заявления, содержащиеся в этих статьях. Однако суды должны были
рассмотреть всю совокупность вопросов. Этот дефект, с моей точки
зрения, не влияет на осуждение заявителей за диффамацию, т.к.
фактически в основе Судебного решения лежат содержащиеся в их
статьях оскорбительные заявления. Указанный дефект привел к
нарушению статьи 6, которое Суд обнаружил единогласно.
11. Я считаю, что оспариваемые решения находятся в
соответствии со статьей 10 п. 2 Конвенции, поскольку выражения и
заявления, использованные в статьях, подрывают репутацию судей,
решавших дело в апелляционной инстанции, а также авторитет и
независимость судейского корпуса.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF DE HAES AND GIJSELS v. BELGIUM
JUDGMENT
(Strasbourg, 24.II.1997)
In the case of De Haes and Gijsels v. Belgium <1>,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B <2>, as a Chamber composed
of the following judges:
--------------------------------
Notes by the Registrar
<1> The case is numbered 7/1996/626/809. The first number is
the case's position on the list of cases referred to the Court in
the relevant year (second number). The last two numbers indicate
the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding
originating applications to the Commission.
<2> Rules of Court B, which came into force on 2 October 1994,
apply to all cases concerning the States bound by Protocol No. 9
(P9).
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr J. De Meyer,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr K. Jungwiert,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney,
Deputy Registrar,
Having deliberated in private on 29 October 1996 and
27 January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 25 January 1996,
within the three-month period laid down by Article 32 para. 1 and
Article 47 of the Convention (art. 32-1, art. 47). It originated
in an application (no. 19983/92) against the Kingdom of Belgium
lodged with the Commission under Article 25 (art. 25) by two
Belgian nationals, Mr Leo De Haes and Mr Hugo Gijsels, on 12 March
1992.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Belgium
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 6 and 10 of the
Convention (art. 6, art. 10).
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicants stated that they
wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 31).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)). On 8 February 1996,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr F. Matscher,
Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland, Mr A.B. Baka,
Mr K. Jungwiert and Mr U. Lohmus (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Belgian
Government ("the Government"), the applicants' lawyers and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in
consequence, the Registrar received the Government's and the
applicants' memorials on 26 June 1996. On 9 October the Commission
supplied him with various documents he had requested on the
President's instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
23 October 1996. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Deputy Legal Adviser, Head of Division,
Ministry of Justice, Agent,
Mr E. Brewaeys, of the Brussels Bar, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicants
Mr H. Vandenberghe, of the Brussels Bar,
Mr E. Van der Mussele, of the Antwerp Bar, Counsel.
The Court heard addresses by Mr Geus, Mr Vandenberghe and
Mr Brewaeys.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Leo De Haes and Mr Hugo Gijsels live in Antwerp and work
as an editor and journalist respectively for the weekly magazine
Humo.
A. The action for damages against the applicants
7. On 26 June, 17 July, 18 September and 6 and 27 November
1986 the applicants published five articles (see paragraphs 19 et
seq. below) in which they criticised judges of the Antwerp Court
of Appeal at length and in virulent terms for having, in a divorce
suit, awarded custody of the children to the father, Mr X, a
Belgian notary (notaire); in 1984 the notary's wife and
parents-in-law had lodged a criminal complaint accusing him of
incest and of abusing the children, but in the outcome it had been
ruled that there was no case to answer.
8. Mr X had instituted proceedings for criminal libel against
those who had lodged the complaint. The Malines Criminal Court and
subsequently the Antwerp Court of Appeal acquitted the defendants
on 4 October 1985 and 5 June 1986 respectively. The Court of
Appeal held, inter alia:
"At the present time the rulings that there was no case to
answer show that the allegations have been judicially held to be
without foundation.
It has not been proved, however, that the defendants acted in
bad faith, that is to say with malicious intent, and they had no
good reason to doubt the truth of the allegations.
Indeed, it was not only the defendants who were convinced that
the allegations were true but also eminent academics, including
Professor [MA] ... and Dr [MB], a child psychiatrist, both of whom
were appointed as experts by the investigating judge, Mr [YE]...
At the Criminal Court hearing on 6 September 1985 ... the
expert [MB] confirmed on oath the content of his report.
That expert, who can hardly be said to lack experience in the
field of child psychology and who studied all the evidence in the
criminal case file, concluded on 28 August 1984 that the
children's statements were credible and put forward several
arguments in support of that view."
On 20 January 1987 the Court of Cassation dismissed an appeal
on points of law brought by Mr X.
1. In the Brussels tribunal de {premiere} <*> instance
9. On 17 February 1987 three judges and an advocate-general of
the Antwerp Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr
[YD], instituted proceedings against Mr De Haes and Mr Gijsels and
against Humo's editor, publisher, statutory representative,
printer and distributor in the Brussels tribunal de {premiere}
instance (court of first instance). On the basis of Articles 1382
and 1383 of the Civil Code (see paragraph 26 below), they sought
compensation for the damage caused by the statements made in the
articles in question, statements that were described as very
defamatory (zeer lasterlijk en eerrovend). They asked the court to
order the defendants to pay nominal damages of one franc each in
respect of non-pecuniary damage; to order them to publish its
judgment in Humo; and to give the plaintiffs leave to have the
judgment published in six daily newspapers at the defendants'
expense.
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
10. In order to safeguard the principle of equality of arms
and due process, the defendants asked the court, in their
additional submissions of 20 May 1988, to request Crown Counsel to
produce the documents mentioned in the disputed articles or at
least to study the opinion of Professors [MA], [MC] and [MD] on
the medical condition of Mr X's children, which had been filed
with the judicial authorities. They gave the following grounds for
their application:
"The issue arises whether the defendants, given the factual
evidence available to them, were entitled, within the limits of
press freedom, to publish the impugned criticisms of the
functioning of a judicial body.
...
In the disputed press articles the defendants relied, in
particular, on various medical reports, statements by the parties
and reports by a bailiff.
...
Nor can it be denied that Mr X's libel action against his wife
was dismissed.
Now that it must be determined whether the defendants were
entitled to publish the impugned press articles on the basis of
the information available to them, it is essential for the proper
conduct of the case that Crown Counsel, who is acting in the case
under Article 764-4 of the Judicial Code, should produce to the
Court the documents cited as sources in the series of articles.
These documents are to be found in various court files.
Any argument as to the lawfulness of the press criticism
presupposes at the least that the Court should be able to study
the opinion of Professors [MA], [MC] and [MD] on the treatment of
X's children, which has been sent to the judicial authorities.
The opinion of those eminent professors of medicine was the
decisive factor which prompted Humo to publish the impugned series
of articles in such a forceful manner.
The views maintained by the defendants and the language and
descriptions they used cannot be assessed in the abstract but must
be assessed in the light of these data, which go to the substance
of the case.
Thus the European Court held in the Lingens case (judgment of
the ECHR of 8 July 1986, Series A no. 103) that the issue of the
limits of the exercise of freedom of expression had to be examined
against the whole of the background:
"It must look at them in the light of the case as a whole,
including the articles held against the applicant and the context
in which they were written" (paragraph 40 of the judgment).
...
For these reasons ... may it please the Court ... to hold that
it is necessary, for the proper conduct of the proceedings, in
particular in the light of the principle of equality of arms and
due process, to request Crown Counsel to produce the documents
cited in the disputed articles that appeared in the magazine Humo,
or at least to study the opinion of Professors [MA], [MC] and [MD]
on the medical condition of X's children, which has been filed
with the judicial authorities."
11. On 29 September 1988 the court ordered Mr De Haes and
Mr Gijsels to pay each plaintiff one franc in respect of
non-pecuniary damage and to publish the whole of its judgment in
Humo; it also gave the plaintiffs leave to have the judgment
published at the applicants' expense in six daily newspapers.
Lastly, it declared the action inadmissible in so far as it was
directed against the other defendants.
The court held, inter alia:
"The plaintiffs are obviously not challenging freedom of
expression and of the press as guaranteed in Articles 14 and 18 of
the Constitution and Article 10 para. 1 (art. 10-1) of the
[European Convention on Human Rights]. Equally, the defendants
cannot dispute that this freedom is not unlimited and that there
are certain bounds which cannot be overstepped. As has already
been set out ..., Article 10 para. 2 of the Convention (art. 10-2)
is no obstacle to bringing a civil action under Article 1382 of
the Civil Code where the press has acted wrongfully.
Article 10 para. 2 of the Convention (art. 10-2) expressly
provides that freedom of the press "may be subject to such ...
restrictions ... as are prescribed by law and are necessary ...
for the protection of the reputation or rights of others ... or
for maintaining the authority and impartiality of the judiciary".
The need to protect the plaintiffs' private life (Article 8
para. 1 of the Convention) (art. 8-1), and more specifically their
honour and reputation, means, in the case of a press article, that
the press must (1) strive to respect the truth; (2) not be
gratuitously offensive; and (3) respect the privacy of the
individual. These criteria are taken up in the "Declaration of the
Rights and Obligations of Journalists" drawn up by the
International Federation of Journalists.
In the articles in question the defendants make frequent
references to the fact that the plaintiffs had allegedly erred in
their judgment and had shown bias. The defendants accepted as
true, without more, the statement made by Mr X's former wife and
her expert adviser (Professor [MA]), although it was clearly shown
in the reasons set out in the four judgments given in the case why
that statement was not reliable. More seriously still, in the
articles in question the defendants expressed the opinion that the
plaintiffs had to be regarded as biased, an opinion derived from
the fact that they were said to belong to the influential circle
of acquaintances of the notary and his father, that one of them
was the son of a gendarmerie general who in 1948 had been
convicted of collaboration, that they allegedly had an
extreme-right-wing background and that they were friendly with
each other.
The plaintiffs' conduct was vigorously attacked by the
defendants in extremely virulent terms, and the defendants clearly
intended to present the plaintiffs in an unfavourable light and
expose them to public opprobrium. The defendants sought to give
their readers the impression that the plaintiffs were siding with
the children's father and that their judgments were inspired by
certain ideological views. To this end, the defendants needlessly
reminded their readers of the wartime activities of the father of
one of the plaintiffs.
The plaintiffs rightly observed that they cannot simply be put
on a par with members of the legislature or of the executive.
Politicians were elected and the public had to trust them.
Politicians could, moreover, use the media to defend themselves
against any attacks. Magistrats [a term which in Belgian law
covers both judges and members of Crown Counsel offices], on the
other hand, were expected to discharge their duties wholly
independently and dispassionately. Their duty of discretion meant
that they could not defend themselves in the same way as
politicians.
That being so, the defendants committed a fault in attacking
the plaintiffs' honour and reputation by means of irresponsible
accusations and offensive insinuations. The orders sought by the
plaintiffs will provide appropriate redress for the non-pecuniary
damage they have sustained ..."
2. In the Brussels Court of Appeal
12. The applicants appealed against that judgment. In their
submissions of 10 November 1989 they pointed out, among other
things, that the sole purpose of the articles in question had been
to criticise the functioning of the judicial system following the
proceedings conducted by the respondent judges and
Advocate-General concerning possible abuse and incestuous acts
suffered by the children. At no time had they attacked the
respondents' private life without reference to their part in the
impugned decision. Mr De Haes and Mr Gijsels repeated their offer
to prove the facts described in the articles and asked the court
to request Antwerp Principal Crown Counsel to produce the
documents they had mentioned, at least those emanating from
Professors [MA], [MC] and [MD] and those from the file on X's
divorce, in particular certain reports and a letter to Principal
Crown Counsel from Professor [MA].
13. The respondents sought to have the judgment of the court
below upheld. In their submission, the applicants' conduct had
been all the more reprehensible and offensive as in an article
that had appeared in Humo on 14 October 1988 (see paragraph 24
below) the applicants had not only maintained their accusations
that the three judges and the Advocate-General were biased but
also criticised by name, in humiliating terms, the judges who had
given the judgment of 29 September 1988 (see paragraph 11 above).
14. On 5 February 1990 the Brussels Court of Appeal affirmed
that judgment, holding inter alia:
"..., as submitted by the prosecution, no action must or can
be taken on the appellants' application to the Court to "request
Antwerp Principal Crown Counsel to produce to the Court the
documents cited in the disputed articles that appeared in the
weekly magazine Humo", and in particular - under Article 877 of
the Judicial Code - "all the documents from the X file".
As already indicated, it is not the Court's task - nor is it
within its jurisdiction - to consider the case already determined
by the Antwerp Court of Appeal, on appeal from the Youth Court. It
follows that the possible course - which is purely discretionary
(Court of Cassation, 2 June 1977, Pas[icrisie] 1977, I, 1012) -
provided in Article 877 of the Judicial Code of ordering that the
documents in question should be added to the file of the present
case would serve no useful purpose whatever.
The appellants are accordingly bound to admit that they
commented on a court case and besmirched the honour of magistrats
without being in possession of all the necessary information, and
this makes the complete irresponsibility of their malicious
attacks even more flagrant.
They further aggravate their position by offering "to prove
the facts referred to in the relevant articles by any legal means,
including an examination of witnesses, before the case is
decided" - an offer which not only must be rejected as being out
of time but also clearly indicates - and this is the main point to
be considered here - with what lack of care and information the
articles in question were written and their accusations made,
before the appellants even had sufficient evidence that they were
true.
In the present case the offer in question could not in any way
support the appellants' case; on the contrary, it clearly shows
that the original plaintiffs' arguments were well-founded and it
also lacks the requisite precision.
It is not sufficient for the appellants to offer - as they
nevertheless do - to prove that everything they have written in
the past concerning "the case" is the truth; it has to be
specified minutely, point by point, what precise and clearly
described fact - "precise and relevant" in the words of
Article 915 of the Judicial Code - is being offered as evidence.
This is in order to make it possible for the opposing side to
adduce rebutting evidence and to enable the Court to assess the
relevance and importance of the facts adduced; the appellants did
not even take the trouble to comply with this requirement.
Furthermore, the Court already has before it all the
information necessary to enable it to decide, in full knowledge of
the facts, whether there has really been defamation.
...
As regards the merits of the case, the court below, for ...
relevant reasons that have not been refuted and with which this
Court agrees, held that the original claim against the appellants
was well-founded because the appellants had undeniably committed a
gross fault in casting serious slurs on the honour and reputation
of the original plaintiffs by means of unjustified accusations and
offensive insinuations.
Freedom of expression and of the press as guaranteed in
Articles 14 and 18 of the Constitution and Article 10 para. 1
(art. 10-1) of the [European Convention on Human Rights] is not
unlimited; certain bounds must not be overstepped and, as has
already been pointed out, it is even possible, under Articles 1382
and 1383 of the Civil Code, to bring an action for damages where
the press has acted wrongfully.
Moreover, in relation to the tort in question, Articles 443 et
seq. of the Criminal Code also refer to acts which may injure a
person's honour or expose a person to public contempt. Defamation
of public authorities is punishable in the same way as defamation
of individuals. Such defamation was precisely what the original
plaintiffs in this case complained of and they undeniably
constitute unlawful "acts", as referred to in Article 1382 of the
Civil Code, "that cause damage to another".
There is no basis for the appellants' contention that
"Article 443 of the Criminal Code is the sole provision in Belgian
law which authorises the courts to restrict freedom to hold
opinions with a view to protecting the honour and reputation of
others; neither Article 764, 4, of the Judicial Code nor
Article 1382 of the Civil Code does so". According to that
argument, the press, and it alone, is not subject to the ordinary,
general rule in Articles 1382 and 1383 of the Civil Code, which
impose a duty on "everyone" to act lawfully and make everyone
responsible for any damage caused through his own "act", "failure
to act" or "negligence".
Under Article 10 para. 2 of the Convention (art. 10-2),
freedom of the press may be subject to such restrictions as are
prescribed by law and are necessary, as in the instant case, for
the protection of the reputation or rights of others or for
maintaining the authority and impartiality of the judiciary.
Pursuant to Article 8 para. 1 (art. 8-1) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that press articles
should be truthful, must not be gratuitously offensive and must
respect the privacy of the individual, criteria which were taken
up in the "Declaration of Rights and Obligations of Journalists"
drawn up by the International Federation of Journalists and
approved by the journalists of daily newspapers in different
countries of the European Community in Munich on 24 and 25
November 1971, where Belgium was represented by the Professional
Union of the Belgian Press.
The appellants cannot in any way rely on Article 19 of the UN
Covenant or of the Universal Declaration, since these similarly
make no reference to unlimited freedom of expression.
Furthermore, the appellants did not explain, and it cannot be
discerned, why the generally applicable concept of fault,
expressly provided in Articles 1382 et seq. of the Civil Code,
should be incompatible with Articles 8 para. 1 and 10 para. 2 of
the Convention (art. 8-1, art. 10-2) (whose precedence is not
being called into question here) in relation to restrictions on
freedom prescribed by law and the protection of private life,
which is at issue here; nor why only journalists should not be
subject to those provisions.
In this connection, the Court wholly agrees with the relevant
reasons set out in the judgment of the court below, which it
adopts in their entirety.
...
Admittedly, the European Court of Human Rights held in the
Bruno Kreisky case that the Austrian journalist Lingens, who was
concerned in that case, had attacked Mr Kreisky exclusively as a
politician and consequently had not violated his right to respect
for private life. In the instant case, on the contrary, that right
was well and truly - indeed grossly - challenged by the
appellants.
The words used and the insinuations and imputations made in
the articles and passages in question are extremely virulent and
dishonouring, since the original plaintiffs, referred to by name,
were accused of having been biased as senior magistrats, and it
was gratuitously insinuated that they had links with the VMO
[Vlaamse Militanten Orde] and that they came from an
extreme-right-wing background and belonged to the circle of
friends of the children's father - who was also, in the
appellants' opinion, extremely right-wing - so that the judicial
decisions made by the original plaintiffs in respect of the
children's custody were only to be expected - all this without any
serious and objective evidence whatever being adduced or existing
to show that the accusations against these magistrats had any
factual basis.
...
The appellants manifestly intended to give their readers the
impression that the judges and Advocate-General concerned had
sided with one of the parties to the case and, furthermore, that
their judgments were inspired by certain ideological views.
Additionally, they needlessly and in a quite uncalled-for
manner reminded their readers of the wartime activities of the
second respondent's late father, which the second respondent had
absolutely nothing to do with and which - despite the appellants'
opinion to the contrary - belong exclusively to the protected
sphere of private life.
Even if the appellants believed that certain ideological views
could be ascribed to the respondents (views which they have failed
to prove that the respondents held), they cannot in any event be
permitted purely and simply to infer from those views - even if
they had been proved - that the judges and the Advocate-General
were biased and to criticise that bias in public.
In none of these suspicions or pieces of gossip directed
against the judges and Advocate-General who brought the original
action is there a shred of truth, and the applicants even lied in
their article of 6 November 1986 (p. 19) when they stated that the
case decided by those judges had been withdrawn from them by the
Court of Cassation, whereas they have now had to admit in their
additional pleadings (p. 6) that "Principal Crown Counsel at the
Court of Cassation refused to order that the case should be
transferred to another court (under Article 651 of the Judicial
Code)".
On 6 November 1986 they announced: "Last Thursday the Wim and
Jan case took a dramatic legal turn. On an application by
Principal Crown Counsel ..., the Court of Cassation withdrew the X
case from the Antwerp court and transferred it to the Ghent
tribunal [de {premiere} instance] in the hope that the Ghent
magistrats would adopt a less biased approach ..."
Admittedly, they went back on this point on 27 November,
writing: "... Our prediction of a fortnight ago that the
agonisingly slow progress being made in the Wim and Jan case was
likely to leave the case stranded in the Antwerp courts has come
true. In the teeth of all the evidence, the Court of Cassation has
held that the Antwerp judiciary cannot be accused of any bias in
this incest case and that the whole case can therefore continue to
be dealt with in Antwerp ..."
False reports of this kind, however, caused the original
plaintiffs irreparable damage, since to be accused of bias is the
worst possible insult that can be levelled at a magistrat.
The exceptional virulence of the appellants' irresponsible
criticisms can probably be explained - but not excused - by
certain political quarrels (which, indeed, do not serve the
interests of justice), as was acknowledged by the appellants
themselves in the 12 February 1987 issue of Humo: "... If any
further proof were needed of behind-the-scenes intrigues in the
case of Mr X and of the fact that political allegiances are
definitely playing a role, this (premature?) leak to the press is
one of the most persuasive pieces of evidence ..."
Because of the unacceptable way in which they were attacked in
the impugned articles, the original plaintiffs were shown in a
particularly unpleasant light and their honour and reputation were
seriously undermined by insulting statements which without any
doubt went far beyond what the appellants described as "their
ability to take flak".
The appellants in fact nevertheless consider their aggressive
style and offensive disparagements justifiable in a little paper
like Humo, which they describe as "clearly critical and
anti-bourgeois".
However, although, when ruling on the defamatory nature of
contributions published in a magazine of this kind with a clear
critical stance towards bourgeois society, one must not apply the
same criteria as when ruling on libellous articles in an
"ordinary" newspaper, it nevertheless remains true that even in an
avowedly critical magazine certain standards must be respected
when criticisms are made, certain bounds must not be overstepped
and it is not permissible to publish false information and
unproved accusations with the clear aim of humiliating and
wounding particular persons, as to do so undeniably amounts to an
abuse of press freedom.
While people are certainly entitled to be
"anti-bourgeois" (?), this does not authorise them to pour out
pure gossip to the public - however limited their readership - by
writing, for example: "The Advocate-General [YD] has since very
properly been removed from this case for having exceeded his
authority" (Humo, 17 July 1986, pp. 6 and 7).
Nevertheless, although the appellants have now, in their
additional submissions, backed down and, saying that their earlier
statement that the Advocate-General had been "removed" had been a
"personal interpretation" of the "fact that at a given point he
had ceased to sit", such an "interpretation" should impel these
"journalists" - however particularly "personal" their style may
be - to practise their profession in future in a less unscrupulous
manner.
In the 14 October 1988 issue of Humo (p. 15) - that is to say
during the present proceedings and although they had announced in
the same short piece that they would be appealing - the appellants
made their position considerably worse still by again accusing the
original plaintiffs of bias and criticising, in similarly
degrading terms, the judges who delivered the judgment at first
instance, who were mentioned by name.
This article stated, among other things: "... The
Vice-President, [YF], and the other judges, [YG] and [YH], dealt
with the case carelessly (sic) ... We wonder whether their
Lordships actually read Humo's submissions ... But at no time has
Humo ever brought up anything to do with the judges' private lives
(sic) ... Clearly, the Brussels judges [YF], [YG] and [YH] did not
manage to give judgment with the necessary detachment and
independence on their fellow judges of the Antwerp Court of
Appeal. They are thus adhering to the line of biased judgments
..."
This could be interpreted as a particularly misplaced and
culpable attempt to influence [the members of this Court],
especially as the appellants predict, through counsel in their
pleading (p. 27), that no newspaper will be prepared to publish
the present judgment, a step that has in any case not been sought.
As regards the question of the case having been dealt with
"carelessly", the appellants have still not grasped that usually -
and rightly - the courts must attach greater weight - as they did
in the instant case - to the findings of expert witnesses that the
courts themselves have appointed and who have no connection with
the litigants and whose objectivity therefore cannot be called in
question by either of the parties rather than - as the appellants
do - to the parties' own experts, whose investigations,
assessments and findings, however, form the main or even sole
evidence on which the appellants believe they are entitled to rely
to make their attacks.
As is unfortunately only too often to be found, notably in
court cases, even excellent university professors and
specialists - in the instant case no fewer than three on each
side - disagree among themselves and, particularly in the fields
of psychology and psychiatry, hold diametrically opposed views -
of which each claims to be 100% certain; this should prompt
everyone - particularly journalists - to refrain from making
accusations of bias - that is to say the most serious of all -
against judges who have to make the final decision on issues as
thorny as the custody of children, where strong passions are
always aroused, and who must necessarily prefer one of the
different versions put forward by the parties to the proceedings.
In the instant case the appellants dared to go one step
further by maintaining, without a shred of evidence, that they
were entitled to infer the alleged bias from the very
personalities of the judges and the Advocate-General and thus
interfere with private life, which is without any doubt unlawful.
Furthermore, the purpose of the present proceedings is not to
decide what ultimately was the objective truth in the case that
the original plaintiffs finally determined at the time but merely
whether the comments in issue are to be considered defamatory,
which is not in the slightest doubt.
Although the appellants refused to acknowledge the fact,
magistrats cannot be unreservedly put on the same footing as
politicians, who can always adequately and promptly defend
themselves, orally or in writing, against reprehensible personal
attacks and are therefore less vulnerable than a magistrat, who is
neither able nor entitled to do likewise.
The status of a magistrat is radically different from that of
all other holders of public office and of politicians and is in no
way based on privileges or traditions but on the fact that it is
necessary for the administration of justice, which entails
particular tasks and responsibilities (see the speech delivered by
F. Dumon, formerly Principal Crown Counsel at the Court of
Cassation, at the opening session of the new judicial term on
1 September 1981, "Le pouvoir judiciaire, inconnu et {meconnu}",
p. 64).
Given the discretion incumbent upon them by virtue of their
office, magistrats cannot defend themselves in the same way as,
for example, politicians, if certain newspapers, apparently hungry
for lucrative sensational stories, attack them and drag them
through the mud.
Purely political cases are precisely what most of the case-law
and legal opinion cited by the appellants in this connection
relates to, however, and it is therefore not relevant to the
instant case.
Unlike a politician, a judge cannot discuss in public a case
pending before him with a view to justifying his conduct, so that
[the original plaintiffs'] failure to exercise their right of
reply certainly cannot be held against them by the appellants (see
Ganshof van der Meersch, formerly Principal Crown Counsel at the
Court of Cassation, {"Considerations sur l'art de dire le droit"},
esp. p. 20); this duty of discretion has again recently been
referred to by the Court of Cassation (Court of Cassation, 14 May
1987, [Journal des Tribunaux] 1988, p. 58)."
3. In the Court of Cassation
15. Mr De Haes and Mr Gijsels applied to the Court of
Cassation, which dismissed their appeal on points of law on
13 September 1991 (Pasicrisie 1992, I, p. 41).
16. In their first ground of appeal, they alleged a violation
of the right to an independent and impartial tribunal, relying, in
particular, on Article 6 para. 1 of the Convention (art. 6-1). In
their submission, certain passages of the Court of Appeal's
judgment raised legitimate doubts as to the impartiality of those
who had written it. This was true, for instance, of the words "a
little paper like Humo", the word "sic" in the extract from the
article of 14 October 1988 (see paragraph 24 below) concerning the
judgment of 29 September 1988 (see paragraph 11 above), a number
of punctuation marks, such as the question mark after the term
"anti-bourgeois", and the statement that the article of 14 October
1988 was "a particularly misplaced and culpable attempt to
influence [the members of the Court of Appeal]". The applicants
also complained that due process had been disregarded in that, as
they alleged, the Court of Appeal had referred to the article of
14 October 1988 of its own motion without their having been able
to defend themselves on that point.
The Court of Cassation rejected this ground, considering that
"it could not be inferred from the mere fact that in their
decision the appellate judges had shown that they preferred the
arguments of one of the parties and disapproved of those of the
other parties that there had been an infringement of the statutory
provision and general principles relied on in this limb of the
ground of appeal". As to the article that had appeared in Humo on
14 October 1988, the appellate judges had not referred to it of
their own motion, since the respondents to the appeal on points of
law had mentioned it in their submissions to the Court of Appeal.
17. In their second ground of appeal Mr De Haes and Mr Gijsels
complained of a violation of Articles 8 and 10 of the Convention
(art. 8, art. 10). In finding against them on the basis of the
general concept of fault in Articles 1382 and 1383 of the Civil
Code, the Court of Appeal had, they said, made their freedom of
expression subject to formalities, conditions, restrictions and
penalties not prescribed by "law" within the meaning of Article 10
para. 2 of the Convention (art. 10-2) (first limb). Furthermore,
by holding that press articles must strive to respect the truth,
must not be gratuitously offensive and must respect the privacy of
the individual, the Court of Appeal had created restrictions which
went beyond what was strictly necessary in a democratic society;
public discussion of the functioning of the judicial system was of
greater importance than the interest of magistrats in protecting
themselves from criticism (second limb). Lastly, the evidence in
the file did not justify the Court of Appeal's finding that the
articles in dispute had disregarded the aforementioned
restrictions (third limb).
The Court of Cassation dismissed this ground of appeal,
holding in particular:
"As to the first limb:
In reaching the conclusion that the appellants are liable for
the consequences of their press articles, the Court of Appeal
based its judgment not only on the finding - partly cited in this
limb of the ground of appeal - that the appellants had committed
an unlawful act and that they "did not explain, and it cannot be
discerned, why the generally applicable concept of fault,
expressly provided in Articles 1382 et seq. of the Civil Code,
should be incompatible with Articles 8 para. 1 and 10 para. 2 of
the Convention (art. 8-1, art. 10-2)" but also on the undisputed
finding, rightly raised by the respondents, that the appellants
had been guilty of defamation as defined in Articles 443 et seq.
of the Criminal Code.
The Court of Appeal's judgment sets out reasons (not
challenged in this limb of the ground of appeal) for the finding
that the appellants had committed a fault within the meaning of
Article 1382 of the Civil Code.
This limb cannot justify quashing the judgment of the court
below and is accordingly inadmissible, as argued by the
respondents.
As to the second limb:
Under Article 10 (art. 10) cited above, the exercise of the
right to freedom of expression may be subject to the restrictions
or penalties necessary in a democratic society for the protection
of the reputation or rights of others or for maintaining the
authority and impartiality of the judiciary.
When asked to punish a given abuse of freedom of expression
affecting members of the judiciary, the courts must endeavour to
maintain a fair balance between the requirements of freedom of
expression and the restrictions applicable under Article 10
para. 2 (art. 10-2) of the aforementioned Convention.
In the instant case the Court of Appeal based its decision
that the appellants had abused the freedom of expression secured
in Article 10 para. 1 (art. 10-1) of the Convention for the
Protection of Human Rights and Fundamental Freedoms not only on
the need to protect the respondents' private life but also on the
unchallenged grounds that the accusations made had not been
proved, the criticism had been directed against named judges, the
matters relied on were irrelevant to the decisions that had been
taken and the accusations had been inspired by a desire to harm
the respondents personally and damage their reputation.
In holding, as appears from the text of its judgment, that,
"pursuant to Article 8 para. 1 (art. 8-1) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that press articles
should be truthful, must not be gratuitously offensive and must
respect the privacy of the individual", the Court of Appeal took
the view that a balance had to be sought between the interests of
a free press and private interests; it did not thereby decide that
the general interest of a public discussion of the functioning of
the judiciary was less important than private interests, nor did
it add any restriction to the exceptions exhaustively set out in
Article 10 para. 2 (art. 10-2).
This limb of the ground of appeal cannot be allowed.
As to the third limb:
Regard being had to the foregoing considerations, the third
limb lacks any basis in fact."
18. In their third ground of appeal the applicants complained
of the Brussels Court of Appeal's refusal to take into
consideration all the evidence that had been before the Antwerp
Court of Appeal and to allow them to prove by any means the truth
of their assertions. In their submission, Articles 6 and 10 of the
Convention (art. 6, art. 10) had thereby been contravened.
The Court of Cassation held:
"The Court of Appeal decided not to grant the appellants'
application for leave to prove the truth of their accusations; in
particular, it refused to order that the files of the cases which
had given rise to the decisions criticised in the press should be
admitted in evidence.
It based its decision not only on the grounds cited in the
ground of appeal but also on separate, undisputed findings: that
the appellants had admitted besmirching the reputation of
magistrats without being in possession of all the necessary
information, which in itself constituted a fault; that the offer
to bring evidence was out of time and ineffective; and that the
Court of Appeal had before it all the information necessary to
enable it to decide, in full knowledge of the facts, whether there
had really been defamation.
This ground of appeal cannot justify quashing the judgment of
the court below and is accordingly inadmissible."
B. The articles in issue
19. The judgments against Mr De Haes and Mr Gijsels related to
five articles that appeared in Humo (see paragraph 7 above). The
first of these, published on 26 June 1986, included the following:
"...
Today, Thursday 26 June, the courts are due to rule in the
long-running case of a well-known Antwerp notary who has been
sexually abusing his two young sons. The notary himself comes from
a distinguished Flemish family with close links to the most select
financial circles in the country. All the indications are that the
reputation of the father and grandfather count for more than the
physical and mental health of the children. Up to now, the court
has rejected, without batting an eyelid, all medical and
psychiatric reports unfavourable to the notary.
How can this be? Louis De Lentdecker has already written about
this case in De Standaard, albeit in veiled terms. However, he was
promptly taken to task by the Antwerp Advocate-General on the
ground that his report had "seriously compromised" the children's
father. Yet De Lentdecker had mentioned absolutely no names. For
our part, we will also refrain from mentioning the father's name
or those of the two under-age children (for convenience, we will
call the three-year-old boy "Wim" and the six-year-old "Jan" and
give the family's surname as "X"). For the rest, we have every
intention of mentioning the other names involved as this is not
the first time that the Antwerp courts have shown a lack of
independence and given extremely odd judgments.
This report is not for those of a sensitive disposition. We
put the facts to a psychologist working in a centre for
psychological, medical and social therapy, a magistrat, a
paediatrician and two lawyers, none of whom has anything to do
with the case. Each of them, independently of the others, advised
us to report on the case in the interests of the children.
...
After Jan was born, things started to go wrong within the
family. The husband was having affairs and even had another home.
Divorce proceedings are filed in October 1983. The mother is
awarded interim custody of the children; the father is given
fortnightly access. At the end of 1983 the children return home
after spending the Christmas holidays with their father; their
mother finds them in a state of total exhaustion. Her
paediatrician, Dr [ME], diagnoses them as having been overtaxed.
While playing, the elder boy tells a story from which it is
apparent that his father has raped him. Dr [ME] is notified and
advises the mother to consult a forensic medical examiner.
The same thing happens on 8 January 1984.
Following her paediatrician's advice, the mother tries to
consult a forensic medical examiner, but he advises her to see a
general practitioner first. There is no answer when she rings
Dr [ME], so she turns to the duty doctor, [MF]. He finds that the
elder boy has an "irritation of the anus" and refers the mother to
a paediatrician in Malines, Dr [MG]. He in turn observes the
following injuries to the elder boy: "slight anal fissure,
pronounced redness around the anus, rectal smear showing presence
of sperm". That evening, at his request, Dr [ME], the
paediatrician, re-examines the children and, given the seriousness
of the situation, refers them to Dr [MH], of the Mental Health
Centre.
On the basis of these medical reports, amongst other things,
Judge [YI] of the Antwerp tribunal de {premiere} instance, acting
on an urgent application, decides on 29 January 1984 to suspend
the father's right of access.
However, on 31 January the Third Division of the Antwerp Court
of Appeal restores the notary's right of access, although the
children are not to spend the night at his home and access has to
take place in the presence of the grandparents.
The nightmare begins, not only for the children, but also for
their mother.
...
On 4 February 1984, for the first time in four weeks, the
notary has an access visit. At 10 o'clock in the morning he picks
up the children in Malines, returning them to their mother at
around 6.30 p.m. In a report the mother, shocked and bewildered,
says: "State of the children: distraught. Wim (aged 3) lies down
on the ground and sobs. Jan (aged 6) sits down apathetically on a
chair. He has visible clinical injuries: a very painful mouth,
which he cannot close, severe swelling of the lower lip and
problems with his eyes; four of his upper teeth come out at once;
he also has a swelling of the neck below the left ear, a reddish
irritation of the cheeks and scratches on the left cheek." Her
lawyer urges her to report the matter to the police at all costs,
but she thinks there is no longer any point. In her statement she
writes, despairingly, "I did not want to, seeing that the
gendarmerie were so sympathetic to the family and that I had
already discovered from experience that the gendarmes did not take
me seriously where the children were concerned."
...
The mother's despairing protests are to no avail. On
18 February, 26 February and 3 March 1984, the father rapes his
children again.
Enough is enough. On 6 March 1984, at the request of Malines
Crown Counsel, Detective Sergeant Luc R. interviews little Jan. A
tape recording of the interview is filed with the Malines Criminal
Court. We have seen the transcript of this interview. In childish
words, but coherently and without contradicting himself, Jan
describes sexual acts performed by his father on him and on his
brother, who is even younger. The content of this interview is far
too sensitive for us to reproduce it here.
...
The mother no longer has any alternative. Since her urgent
request for a renowned expert to be appointed has twice been
rejected, she herself calls in the child psychiatrist [MA], a
professor at the Catholic University of Louvain. On 6 and 11 April
he examines the children and finds that during the weekend of 8 -
9 April the father has again ill-treated and raped his children.
According to Professor [MA]'s findings, the children's story
essentially corresponds to what is stated in the mother's
complaint. Moreover, the children reveal certain details to him
which even the mother has not mentioned and which her children
manifestly cannot have invented. Professor [MA] concludes: "We are
convinced that the children's visits to their father are
manifestly likely to have an adverse effect on their future
development. It is already clear that the immediate effect of
access is that the children are extremely upset and disorientated;
after the two days spent with their father, they present as
anxious and aggressive. If these visits continue, we fear that
both children may develop problems, in the nature of mental
illness in the case of the elder and, in the case of the younger,
a tendency to regress, with arrested development. We therefore
request that the children should undergo a thorough psychiatric
examination; that all the parties, including the father, should be
interviewed; and that, pending this examination, the father's
right of access be temporarily withdrawn."
On 28 May 1984 Professor [MA] sent a detailed report on the
case to Principal Crown Counsel [YJ] and the Advocate-General
[YD]. It is an impressive document recording the results of a
number of psychiatric examinations of the children in the form of
interviews (both with and without the mother present). The
children were examined both immediately after an access visit and
at less stressful times during the week. Professor [MA] concluded:
"The two children confirm, independently of each other, the
various types of sexual abuse which have been inflicted on them."
Could the mother have coached the children in these stories?
Professor [MA] says "Jan's version of events always coincides with
his mother's. I see this in itself as an indication that Jan's
story reflects real experiences. A child of six does not in fact
yet have the intellectual capacity, in the context of a guided
interview, to faithfully reproduce, exactly as it has been told to
him, a story which he has been "fed". Furthermore, there were
times when Jan replied to very specific questions with equally
specific answers, which he had never given his mother (and which
his mother had therefore never mentioned). Thus when asked whether
"he bites the willy when it comes into his mouth", he answers,
very specifically: "I can't, because he (the father) puts his
fingers between my teeth." I do not consider that a six-year-old
child is capable of inventing so specific a response, nor do I
believe that such specific responses could have been "prepared" in
advance by the mother."
On 22 June Professor [MA] sent a supplementary report to
Principal Crown Counsel [YJ] and the Advocate-General [YD]. In it
the child psychiatrist confirms his earlier findings with the aid
of even more convincing arguments and again calls, insistently,
for a judicial investigation and a further expert psychiatric
report. But to no avail. The unthinkable happens: three days later
the Third Division of the Antwerp Court of Appeal grants Mr X
custody of his children.
The court holds, inter alia: "An expert opinion is not
required and, indeed, is not desirable in that the expert would
inevitably find himself faced with the issue of fault, which must
be left to the courts alone to decide." Those responsible for this
extremely odd judgment are [YA] (the presiding judge), [YC] and
[YB] (the other judges) and [YD] (the Advocate-General).
...
In July, pursuant to the custody award in his favour, the
notary has the children staying with him; they are again raped. In
a tape-recorded interview Jan tells Professor [MA] that his Daddy
has done "the same thing" again, that Daddy "thumped" him and hit
him on his tummy and that he wasn't allowed to tell anyone about
it. Jan doesn't know how many times his father has raped him -
"several times, I can't count them".
Professor [MA] sends his umpteenth letter on the matter to
Principal Crown Counsel [YJ], stating, without mincing his words:
"In an emergency the State is bound to intervene under
section 36 (2) of the Child Protection Act ... It is impossible
and unacceptable for two children to remain exposed to an
extremely dangerous situation as a result of a court decision."
All Professor [MA]'s findings are subsequently confirmed in
"an expert report" by Dr [MB], a child psychiatrist and
psychoanalyst appointed by the investigating judge [YE] of the
Malines tribunal de {premiere} instance. The following few
extracts from Dr [MB]'s report may suffice: "(1) After a little
embarrassment Jan nevertheless finds it fairly easy to talk about
his experiences with Daddy. His clearest memory is of the events
of July 1984. He describes how Daddy sometimes used to sit on him,
how Daddy used to put his sexual organ into his anus, or sometimes
his mouth, and wee-wee. He says that Daddy threatened him, saying
that he would saw Grandma and Grandpa in half, and really hurt
Jan, if he said anything about it all. He says that Daddy didn't
act like that when Daddy and Mummy were still together, Daddy just
used to hit him; (2) Jan describes these experiences fairly
readily and there are no contradictions in what he says. However,
he presents as shocked and embarrassed when recounting certain
things. He blushes and sometimes protests vigorously that Daddy
was hurting him. He does not give the impression of making things
up or merely seeking attention."
Psychoanalysis of Jan's emotional life reveals, moreover, that
the little boy is constantly anxious and traumatised. The findings
concerning the younger child are similar. According to Dr [MB],
"His [Wim's] fantasies create a strong impression that there has
been sexual abuse by the father and that his unconscious is trying
to assimilate these uncomfortable impressions."
In October little Wim is again interviewed by two detective
sergeants and his (female) schoolteacher. The interview takes
place in Wim's usual classroom, in the presence of the
headmistress. The child repeatedly confirms what has happened to
him. The interview was transcribed verbatim and the tape filed as
an exhibit at the Malines tribunal de {premiere} instance.
...
How can a father reach the point of committing such atrocities
against his own children? In his report Professor [MA] says: "The
problems between husband and wife became more serious after Jan
was born. It was then that X, for the first time, overtly
displayed his sympathies with Hitler. Thus, for example:
- The family had to live according to Hitler's principles:
women do not count - at most, they are instruments of procreation.
Anyone who fails to become an "{Ubermensch}" (superman) had better
die. An "{Ubermensch}" can legitimately lie and be dishonest. [X]
is in fact awaiting the coming of a new Hitler. His whole way of
life is dominated by that.
- The children were to be brought up in Hitler's doctrine.
They were made to give the Nazi salute; they were taught not to
play but only to fight and make war. The children were to venerate
their father just as the German people venerated Hitler at the
time; their mother is merely an intruder in the X family.
- Lastly, it is worth noting that Mr X has also declared on
several occasions that he possesses supernatural powers and can
crush anyone who opposes him. In particular, he says "We are
leeches, we squeeze someone like a lemon, then we drop them." He
certainly feels very powerful. He has also spoken to the children
on several occasions about his "supernatural powers", saying that
he was going to change Jan into a brown sheep and leave him in a
field and that he was going to change little Wim into an owl. He
also used to talk to the children a lot about skeletons and
skulls. As a result, little Wim once asked his mother out of the
blue "not to put him under the ground in a box"."
Professor [MA] ends his remarks on the father thus:
"His manifest sympathies with Hitler and his regime, and his
fantasies concerning his own supernatural powers and omnipotence
reveal, at the very least, in my opinion, a pathological
personality. I accordingly consider that a much more thoroughgoing
judicial investigation and psychiatric report are imperative in
this case."
...
The X family's almost daily contacts with the legal world are
not enough to explain how he has remained almost immune. The large
network of contacts which the family has woven over the years is
proving useful in this respect, especially their contacts in
extreme-right-wing and/or Flemish nationalist circles. For
example, members of the X family are militants in the Stracke
Noodfonds, the Marnixring, the Orde van de Prince, the Vlaamse
Kulturele Produkties (an offshoot of Were Di), the Nationalistich
Jong Studenten Verbond (NJSV) and the Vlaams Blok. It is a
well-known fact that the X family gives financial support to the
VMO. In 1971 they helped create the "new" VMPO under Bert
Eriksson, and at the time of the VMO trials they launched an
appeal through the Stracke Noodfonds for members to make a
financial contribution in support of "dozens of young Flemish
people facing ridiculous penalties and fines". Witnesses confirm
that the cellar of the X family's house is decorated with Nazi
swastika flags, the ideal {decor} for nostalgic little "brown"
parties. Equally remarkable are the X family's efforts in support
of apartheid. One of the members of the family was even a founder
of the pro-South-African club Protea. Why is this network of
contacts so important in the notary's incest case?
Most of the judges of the Third Division of the Court of
Appeal, who awarded custody to the notary, also belong to
extreme-right-wing circles. Judge [YB] is the son of a bigwig in
the gendarmerie who was convicted in 1948 of collaboration: he
had, in close collaboration with the "Feldgendarmerie",
restructured the Belgian gendarmerie along Nazi lines. [YB] is no
less controversial as a magistrat. During the judicial
investigation into the VMO training camps in the Ardennes, he
managed, in the teeth of all the evidence, to sustain the theory
that the photographs of the training camp had nothing to do with
the VMO but came from German neo-Nazis.
Another judge in this incest case is [YA]; she is the
President of the Antwerp Court of Appeal. During the VMO trial,
over which she presided, the organisation was acquitted on the
charge of constituting a private militia. This judgment was
subsequently reversed by the Ghent Court of Appeal.
And then there is Principal Crown Counsel [YJ], whom Professor
[MA] has bombarded with reports denouncing the sexual abuse of the
children. It just so happens that Principal Crown Counsel [YJ] has
the same political sympathies as the X family. He was one of the
founders of Protea but had to resign after a question was asked in
Parliament. He is still a member of the Marnixring and of the Orde
van de Prince in Malines, with both of which the X family
maintains very special links.
Since the very beginning of the investigation the gendarmerie
too have played a dubious role. The abused children and their
mother have consistently been treated like dirt, whereas the
notary accused of incest and his father have been treated with the
greatest consideration. Is it a coincidence that the X family
maintains contacts with several of the (present or past) bigwigs
of the gendarmerie: former Lieutenant-General [ZC] (Protea and the
Orde van de Prince), General [ZD] (the Marnixring) and General
[ZE] (the Marnixring and Orde van de Prince)?
...
The children are not in good shape. They are receiving
treatment and, according to well-informed sources, are still "at
risk". There are only two possible solutions. Either the
prosecuting authorities have the courage, in the light of recent
events and findings, to prosecute the notary or else the Youth
Court must begin new proceedings with a view to restoring custody
to the mother. This last point is not unimportant since Mrs X has
been summoned to appear before the Antwerp Court of Appeal on
26 June on the grounds that she has twice attempted to keep the
children with her at the end of an access visit.
In the meantime, the mother and her parents have been duly
acquitted on appeal in proceedings instituted against them by the
notary for making a defamatory witness statement. They had already
been acquitted at first instance. There are only two
possibilities: either the mother's complaint is defamatory or it
is not, in which case the notary is guilty of incest. There is no
other possibility."
20. Mr De Haes and Mr Gijsels published their second article
on 17 July 1986. It included the following:
"...
On Tuesday 24 June Humo published in issue no. 2390 an article
that caused a sensation: "Incest authorised in Flanders". In that
article Mr X, a notary from a distinguished Flemish family with
close links to the highest financial circles in the land, was
accused of having repeatedly raped and beaten his little boys, Wim
and Jan. Those allegations were supported by a number of medical
and psychiatric reports. Despite the evidence, the notary was
awarded custody of the children.
In the report, we paid due attention to the dubious role
played by the gendarmerie and the network of extreme-right-wing
contacts maintained by the X family, whose tentacles have reached
the Antwerp law courts. This network of contacts is principally
centred on staunch brown organisations like the VMO, Protea, the
Stracke Noodfonds and the Marnixring. We also showed how Judges
[YJ], [YA] and [YB] - who saw to it that the father gained
custody - fitted into and around these shady movements.
From the large number of letters we have received, it appears
that half Flanders is shocked by such warped justice. The same
question comes up again and again: what kind of a country are we
living in? In the meantime, we have obtained even more information
about what some of the most highly placed circles have been
allowed to get away with, hand in hand with their lackeys in the
courts and the gendarmerie.
...
Humo had hardly come off the presses when Mr X personally
telephoned one of the authors of the article to say, in a
threatening tone: "I am not a pederast. I am not a paedophile. The
time will come when you will apologise to me!!!" And then he hung
up.
In the course of the legal proceedings, Mr X has devoted
himself to making even more brutal intimidation attempts. For
instance, he assaulted one of his children's uncles in broad
daylight on the Meir in Antwerp. When the children's mother was
acquitted of libel, he hurled abuse at her counsel within the
precincts of the Antwerp law courts and in front of other people.
His own counsel had to intervene to calm him down. One of the
doctors who had found evidence of sexual abuse received a
registered letter threatening him with criminal libel proceedings
unless he withdrew the findings in his examination report. At
least one other doctor has been bombarded with letters containing
the crudest threats. The journalist covering the Antwerp Court of
Appeal hearing on 26 June was pursued by the notary when he went
out for some fresh air during a brief adjournment. The reporter
had no choice but to escape by running between the fairground
stalls of the Whitsun fair.
The management of Humo and of the Dupuis publishing house have
also been put under strong pressure. The X family were tipped off
that an article was about to be published concerning the incest
case. What happened? The printing was held up for hours, but the
article was nevertheless published.
...
This kind of brutal pressurising seems to "work" very well
within the system of justice. After the article was published, a
mass of new information came in from all sorts of quarters. This
unique incest case has been gathering notoriety for quite some
time, not only in the professional circles of paediatricians and
child psychiatrists but also in Crown Counsel offices, the youth
courts and children's refuges. Thanks to the fresh data, we now
have an even better picture of how often and how treacherously the
courts have manipulated the case - with, up to now, only one
apparent aim: to promote, not the welfare of the children, but
that of the notary.
...
- Likewise accepted were the results of an hour's questioning
by Detective Sergeants [ZF] and [ZG], during which Jan was once
again forced to withdraw his accusations. Louis De Lentdecker, who
was on the spot when Jan came out, wrote in De Standaard: "He
started crying, sobbing. He was completely distraught. Shaking
with sobs, he said that he had been questioned again by two men,
that he had said that none of it was true because he had been
afraid and that he didn't want to go home to his father's but
wanted to stay with his mother. And he clung to his (maternal)
grandmother, crying his heart out." What credibility can such an
interview have? One of the statements obtained under duress
certainly does not fit: according to [interview record] no. 2873,
Jan stated that he had never seen his father naked. The notary
himself told Louis De Lentdecker: "It is said I used to stand
around naked in front of them. There were evenings when the
children would come rushing into the bathroom while I was having a
bath. When that happened, I would send them out straight away."
Interviewed by [MN], a psychiatrist, the notary, anxious to defend
himself, was even more categorical: "Prior to the divorce, there
were a few times when the children came upon X naked in the
bathroom. It is understandable that the children's attention was
particularly attracted to the genitals."
Is it also a coincidence that Detective Sergeant [ZG] and his
wife were the notary's guests for Easter lunch?
- In the middle of 1984, following a private meeting with
Principal Crown Counsel [YJ] and the Advocate-General [YD],
Professor [MA], a well-known child psychiatrist, is informally
given the job of studying the criminal case file in detail. To
this end, Principal Crown Counsel's office sends him the various
typescripts and tapes of the questioning sessions. Professor
[MA]'s conclusions are contained in a number of reports sent to
Principal Crown Counsel and the Antwerp Court of Appeal. His
provisional conclusions are contained in a report of 22 June -
just in time, as judgment is due to be given on 27 June. Principal
Crown Counsel [YJ] knows that this supplementary report is being
drafted, and what happens? Out of the blue, the Third Division of
the Court of Appeal sits two days early and awards custody to the
notary, "without taking into account the documents filed by
Professor [MA] after the close of the hearing". Was the Court of
Appeal informed that Professor [MA]'s report, which was very
unfavourable to the notary, might be filed before the close of the
hearing, and is that why the Third Division sat two days early?
What is more, not all Professor [MA]'s reports were filed after
the close of the hearing. In fact, the Third Division had at least
three other reports by Professor [MA] at its disposal, all of them
to the same effect. So the judges are lying in their judgment. On
6 November 1984 the case again comes before the court, and this
time the division relies on a totally different argument in order
to dismiss Professor [MA]'s reports: "Despite what he (Professor
[MA]) appears to believe, he has not been appointed by Principal
Crown Counsel at this Court to assist the Court in any way in
relation to this case." There are only two possibilities: either
Professor [MA] was given Principal Crown Counsel's office's tapes
so that he could study them, or else he stole them and must be
prosecuted and convicted. If he has not been appointed by the
court, Professor [MA] is not authorised to be in possession of
documents from the criminal file. The courts are therefore once
again using dirty tricks to give a veneer of honesty to an
inexcusable judgment.
- On 26 June 1984, to general astonishment, the President of
the Third Division of the Antwerp Court of Appeal, Mrs [YA],
together with her fellow judges [YB] and [YC], award custody to
the notary who stands accused of incest. However, he can exercise
his right of custody only under the supervision of his parents.
Here we find ourselves faced with the most tortuous reasoning:
either the notary is to be wholly trusted as far as his children
are concerned and he can have custody; or he is not to be trusted
and the children are at risk with him. Mrs [YA], however, opted
for a hypocritical judgment. If the notary has to be supervised by
his parents, he is obviously not trustworthy. And yet he is given
custody. Can anyone make head or tail of this? The Third Division
had already moved in this direction. At the hearing on 6 June the
notary's parents had been asked whether they would be willing to
take on this onerous responsibility. To which, of course, they
said "yes". Coincidence or no, it was the only time that the
notary's parents attended a hearing. That fact makes it look very
much like a put-up job. Had they been told in advance that this
question was going to be put to them?
- The grandparents are not the only ones to have been given
information in advance. On 25 June, two days before judgment was
officially given, the notary was waiting to pick his children up
from school. He already knew that the Court of Appeal was going to
award him custody. How could that be?
- In the previous article, we mentioned the mother's complaint
that the detectives constantly twisted her words or simply did not
write down what she said. That is not all. Statements by
eyewitnesses have also been falsified ...
- At a certain point the investigating judge in Malines,
Mr [YE], a former CVP [Christian People's Party] councillor for
Willebroeck, appoints Dr [MB] as a (medical) expert. Dr [MB] comes
to the same conclusions as Professor [MA]: Jan and Wim have been
sexually abused. Dr [MB] warns the investigating judge
unequivocally: "It is important to avoid aggravating the father's
psychological problems and turning him into a confirmed homosexual
or pederast." Despite this, on 6 November Mrs [YA] and her fellow
judges [YB] and [YC] confirmed the custody order in favour of the
father. It is the most cowardly judgment we have ever read. The
children's mother is blamed for not having filed a copy of the
report by the expert [MB], "with the result that it is not
possible to examine its contents". But how could the mother have
filed this report? She is not even entitled to consult it, let
alone to study it. In Belgium the law prevents anyone from
obtaining any information so long as a judicial investigation is
under way, because the investigation is secret. The Court of
Appeal expressly acknowledges in its judgment that the judicial
investigation is still under way, and yet Mrs [YA] blames the
mother for failing to file this report! When it is for Principal
Crown Counsel's office to file an expert's report! Despite the
fact that the investigating judge [YE] has been in possession of
Dr [MB]'s report since the end of August, we read in the Third
Division's judgment that "Principal Crown Counsel's office did not
consider it necessary to inform the Court of this fact". Why did
Principal Crown Counsel's office refuse to forward this crucial
expert report to the Court of Appeal? Because it was too
unfavourable to Mr X? However that may be, Mrs [YA] put her name
to a mass of legal nonsense.
- On 5 September 1984 Louis De Lentdecker publishes his first
article on the incest case under the title, "Justice goes mad. A
young woman fights for her children". Very shortly afterwards the
Advocate-General [YD] summons De Lentdecker by telephone. As De
Lentdecker comments in his second article, on 28 September, "It is
rare for a judge or Crown Counsel to summon a journalist to an
interview in connection with pending legal proceedings."
The following extract from De Lentdecker's article is also
telling: "When I asked why the court had not appointed three
experts to look into the case from the psychiatric, medical and
forensic points of view, the Advocate-General replied, and I quote
his exact words, "These kids (i.e. Wim and Jan) have already had
to drop their trousers too much for all sorts of examinations. The
best thing is to leave them in peace." When I retorted that the
court had, however, appointed an expert (De Lentdecker is
referring to Dr [MB]) and that his report had barely been raised
if at all, presumably because it contained damning findings as
regards the father, the Advocate-General replied: "It is not true
that the expert report ordered by the court damns the father. In
any event, I do not know what it says. Besides, the man's findings
are not valid - he completed his examination in five days." What
crass bias on the part of the Advocate-General [YD] is revealed in
those quotations. And what on earth could have made him take a
journalist to task in this way? That is not one of his duties. The
Advocate-General [YD] has since very properly been removed from
this case for having exceeded his authority and he has been
replaced by the Senior Advocate-General [YK].
...
There are also a few positive developments. On Thursday
26 June the Ninth Division of the Antwerp Court of Appeal upheld
the October 1985 judgment of the Malines Criminal Court, which had
acquitted the mother on the charge of removing the children from
the notary's custody. The important thing about that case, apart
from the mother's acquittal, is that the court duly took into
account the evidence of Professor [MA] and the court-appointed
expert [MB], who both testified under oath at the hearing that the
children had indeed been sexually abused. The bench in this case
was composed of judges other than [YA], [YB] and [YC], and
Principal Crown Counsel was not [YJ]."
21. The applicants published their third article on
18 September 1986. It contained the following:
"...
In this article we reproduce photographs, drawings and
quotations which we would have preferred not to publish. Most of
these documents have been in our possession from the outset, but
we did not want to run the risk of being accused of
sensationalism. The courts are likewise in possession of this
irrefutable evidence, and it is precisely because the Antwerp
Court of Appeal and Youth Court refuse to have regard to it that
we find ourselves obliged to publish it.
The astonishment, anger and incredulity our readers feel are
fully shared by us. Astonishment that such a thing is possible;
anger because it is allowed; and incredulity because the ultimate
guarantee of our democracy, an independent system of justice, has
been undermined at its very roots. This is why, for the sake of
the children Wim and Jan, we are publishing evidence which we
would rather have left to rot under lock and key in cupboards in
our archives.
Guy Mortier
Editor
On Tuesday 2 September a Youth Court judge, Mrs [YL], made an
interim order in the scandalous incest case involving an Antwerp
notary. As everyone knows, this tragedy is being played out in the
most highly placed financial spheres in the country, against the
background of extreme-right-wing circles in Flanders. The Antwerp
notary is accused by his wife of having sexually abused his two
little boys, whom we are calling Wim and Jan, of having physically
ill-treated them and of continuing to ill-treat them. The Youth
Court judge has now decided that the father should be awarded
custody of his children, or rather should retain custody, since he
had already been given it, in defiance of any concept of justice,
by the Antwerp Court of Appeal. Yet the mother, who has not been
accused of anything, and who has already been twice acquitted on a
charge of libelling the notary, is not allowed to see her children
more than once a month.
...
This inexplicable judgment once again stands reason on its
head. The case file is getting thicker and thicker and contains
numerous medical certificates, horrifying drawings by the children
of being raped by their father, photographs of anal irritations
and marks left on the children's bodies after blows from a
cudgel - not to mention detailed psychiatric reports on the
children: one by the court expert [MB], five by Professor [MA], an
eminent Louvain paediatrician, and two, including a very
up-to-date one, by Professor [MC], who recently examined the
children in the greatest secrecy. Each time, it emerges clearly
that the two children have been sexually and physically abused.
Why does the Youth Court judge [YL] refuse to take account of this
solid evidence in her judgment, especially as not one of the
medical reports questions that there has been physical abuse? Does
Mr X's family really have so much influence and money that the
Antwerp courts are incapable of giving an independent ruling?
It is not for the press to usurp the role of the judiciary,
but in this outrageous case it is impossible and unthinkable that
we should remain silent. Up to now, we have dealt with this incest
case as sensitively as possible. Now that the courts have
definitively taken a wrong turning, we feel obliged, in the
interests of the children, to reveal more details, however
horrible and distasteful they may be for the reader.
...
On what evidence did the Youth Court judge [YL] base her
interim order? According to an article (the first of several) in
Het Volk, the source of which appears to be the notary himself,
[YL] allegedly based the interim order on a report by three
experts she had appointed. According to Het Volk, that report
makes it clear that "there can never have been any question of any
sexual abuse". The least that can be said is that Het Volk has
been misinformed (indeed, it has since gone back on its first
article). What exactly is the truth?
Three court-appointed experts, Dr [MI], Dr [MJ] and Dr [MK],
had Wim and Jan for observation during the holidays at the
Algemeen Kinderziekenhuis Antwerpen ("the AKA" [a paediatric
hospital]). Their report is not yet ready and therefore has
certainly not yet been filed. The Youth Court judge and the
parties have nothing in writing from them. The Youth Court judge
[YL] has therefore rushed a decision through even before the
experts' report is finished. This procedure in itself appears
extremely suspect. But what is worse is that it leaves the mother
completely defenceless. Since there is nothing official on paper,
she cannot appeal against the Youth Court judge's decision.
Secondly, contrary to what is suggested, the three doctors
referred to are not independent experts. Dr [MJ] and Dr [MK] work
under Dr [MI] at the AKA. It is therefore difficult for them to
challenge their superior's findings. At the AKA these two doctors
are not known for being the kind to put a spoke in their boss's
wheel.
Thirdly, there is the question whether it was advisable to put
Dr [MI] in charge of the team of experts. We do not wish to
prejudge the report before knowing what it contains, but is it not
singularly unfortunate that a person belonging to the same
ideological camp as the extreme-right-wing notary should have been
appointed in this case, which is already so politicised? Dr [MI]
is married to the daughter of [ZH], who was a governor during the
war. Readers will also remember that Mr X's family has a very
close relationship with "blackshirt" circles. Dr [MI] also boasts,
in front of hospital staff, that he supports the apartheid regime
in South Africa, just like Mr X's family. This is the same Dr [MI]
who, some time ago, treated a maladjusted child by enrolling him
in the extreme-right-wing Vlaams Nationaal Jeugdverbond (VNJ),
just to teach him some discipline. Everyone is entitled to their
political opinions, but in this sensitive case it would have been
reassuring to see a less politically charged expert appointed.
Just as inexplicable is the fact that the Youth Court judge
[YL] keeps Mrs [ZI] on as the Child Protection Department officer
attached to the court. Judge [YL] has to rely very considerably on
the child protection officer for all her information, and
therefore also for her view of the case; yet we have already
disclosed that Mr X knows Mrs [ZI] well. Moreover, that fact
appears in an interview record dated 6 October 1984. In this
interview the notary repeatedly cites Mrs [ZI] as one of the
people whom the courts can ask to testify to his basic
kindheartedness. Is it really impossible to remove from this case
everyone who has ideological or friendship ties with the X family?
...
How does the notary defend himself against his children's
accusation that in May he beat Wim with "a spiked cudgel"? In a
very confused way. It emerges from a transcript of the children's
story and a bailiff's report that he beat Wim on 14 May. That day,
the notary and his little boys were visiting Dr [MJ]. In the
presence of his father, Wim told the doctor some very compromising
things about him. As soon as they got home, the father started
beating Wim. The next day, the notary went to see Dr [MJ] on his
own and, strangely, said not a word about his son's injuries. It
was not until several days later, when the photographs were sent
to the relevant authorities, that he came up with a story about
Wim having fallen downstairs. Why did he not say this at the
outset? The children confirm to Professor [MC] that Wim was beaten
and that he did not fall downstairs at all. So the notary changes
tack. On 2 June he calls in a bailiff who is a friend of his and
who draws up a report according to which the children deny
everything. Strangely, it is not the bailiff but the father
himself who questions his little boys. So this report is
worthless.
On 5 June the notary comes up with yet another idea. A Dr [ML]
issues a certificate stating that he can find no injuries. Which
is quite possible, since three weeks have gone by in the meantime.
Why does the notary have the fact that there are no injuries
certified three weeks later, when he originally stated that the
injuries were caused by a fall downstairs?
The latest version is that Jan hit Wim. This figment of the
imagination comes from the Youth Court judge herself. There's bias
for you.
...
The ill-treatment which occurred in May was not an isolated
incident (as we have already indicated on several occasions). As
early as 10 January 1984 Dr [MG] sent the following results of his
examination of four smear tests to a forensic medical examiner,
Dr [MM]: "Apart from amorphous matter, epithelial and mucous
cells, I observed, in three out of the four samples, a structure
with a triangular head on a long, more or less straight tail,
which matches the description of spermatozoa. I observed the
presence of one such structure in two of the three samples, and
two in the third." Other doctors also made the same findings.
Subsequently, Professor [MA] and the court expert [MB] reach the
conclusion, independently of each other, that Wim and Jan have
been sexually and physically abused. The latest report is by
Professor [MC]. In order to supplement an earlier report, this
expert examined the children on twelve occasions between 1 August
1985 and 31 May 1986 - the elder without his mother present, Wim
normally in his mother's presence because at the beginning it was
practically impossible to examine him without her. As Director of
"Kind en Gezin in Nood" ["Children and Families in Need"], one of
the departments of Leuvense Universitaire Ziekenhuizen [Louvain
University Hospitals], Professor [MC] is one of the principal
authorities in the field. In order to remain entirely uninfluenced
in his work, he expressly decided to refuse any form of payment.
His report contains the most horrific findings. According to it,
the children have been beaten not once but several times with a
spiked cudgel. This abuse is, moreover, inflicted as a form of
ritual. Candles are lit; sometimes, the father wears a brown
uniform and the cudgel has a "sign of the devil" on it. Through
the children, Professor [MC] was also able to discover where the
father took his inspiration from. He found the sign of the devil
in Volume I of the Rode Ridder ("The Red Knight")(!), entitled De
barst in de Ronde Tafel ("The cleft in the Round Table"). The sign
is accompanied by the following text: "This is the symbol of the
Prince of Darkness, an unknown magician and Grand Master of Black
Magic! Even before the Round Table was created, he went away and
no one knows where he is today! He devotes his exceptional
knowledge and power to everything that is evil and negative! His
sole objective is to sow confusion and destruction. He is a symbol
of the violence which reigns in these times over humanity and
justice!"
Professor [MC] does not mince his words in his report: "By way
of conclusion, it can be said that Wim is the victim of repeated
sexual and physical abuse and that his brother Jan is subjected to
the same abuse to a lesser degree but, under very strong
psychological pressure, is becoming increasingly psychologically
disturbed, hence the drop in his school marks and the occasional
inconsistencies in what he says in different interviews. In the
interests of both children a court order should be made
immediately to remove them completely and permanently from their
father's orbit. Any further delay would be medically
unjustifiable."
Appended to the professor's two reports are very precise
descriptions of the children's injuries, the statements made by
the children, sinister drawings by Wim and Jan of sex scenes with
their father (often represented with horns), and photographs. Both
reports are in the hands of the experts [MI], [MJ] and [MK]. Judge
[YL] also has them. Just as she has Professor [MA]'s five reports
and the report by the court expert [MB]. How can Mrs [YL] maintain
that there is no evidence? Do the children have to be beaten or
raped before her eyes before she believes it?
...
Similar accusations by the children against their father were
also subsequently recorded by Professor [MA], the court expert
[MB], the two detective sergeants [ZF] and [ZG] in the presence of
Wim's schoolteacher, and, lastly, Professor [MC]. On the other
hand, there is one retraction of the statements in an interview
(of which there is only a single, confused minute on tape) carried
out by Detective Sergeant [ZJ], since suspended, who intimidated
Jan with a weapon; one in an interview with Detective Sergeants
[ZF] and [ZG], at the end of which Jan broke down completely (as
Louis De Lentdecker happened to witness); and one retraction made
by Jan to Professor [MC], in his father's presence.
The crucial question remains: is any mother capable of
inventing all this? Even more to the point, would two young
children - they will be 6 and 9 respectively this month - be
capable of keeping up their accusations for over two and a half
years if those accusations had been invented and forced on them by
their mother? And when could the mother have coached her children
in accusations such as these?
It should not be forgotten that since 25 June 1984 the notary
has had custody of the children by order of the Third Division of
the Antwerp Court of Appeal. For more than two years the father
has had a great deal more influence over these children than their
mother, who has the right to see her children only from time to
time - a right of access with which the notary has frequently not
complied.
What is more, if the notary has such a clear conscience, why
does he declare war on anyone who puts legal or other obstacles in
his path? Why has he already threatened so many people in
connection with this case? In this article we shall mention only
the most recent threats and acts of intimidation.
...
The case file also contains the report of an interview
Professor [MA] had on 23 May 1984 with Principal Crown Counsel
[YJ] and the Advocate-General [YD]. We realise how delicate it is
to quote from letters that were not intended for publication, but
needs must when the devil drives. Professor [MA] describes how the
interview went: "After I had discussed my problem and my request,
namely that three experts should be appointed, I quickly realised
that Principal Crown Counsel wished to proceed with the case
impartially and without prejudging the issues, but that Mr [YD]
already had a very clear idea of what should be done - "The
children's story was made up, perhaps fed to them by the mother,
and the children should be entrusted to the care of their
grandparents, with the father also being involved in the process."
Mr [YD] brushed aside my request for an expert report rather
brusquely. In his view, judges had far more expertise than doctors
in this field, and subjecting the children to further expert
investigations and interviews could only do them more harm.
Principal Crown Counsel was much more balanced in his response and
considered that an expert report was indeed called for. Moreover,
Principal Crown Counsel expressed serious reservations about
Mr [YD]'s suggestion. He said that the children's paternal
grandfather, to whose care Mr [YD] proposed entrusting the
children, was, and I quote, "mad". At every reception at which he
encountered Mr X, he would see Mr X senior explaining, very
clearly and without attempting to disguise his meaning, that
Hitler should come back to this country. He added that this
impression that the grandfather was "mad" was shared generally by
all the guests at such receptions. And he expressly told Mr [YD]
that he would consider it totally unjustified to entrust the
children to the care of their paternal grandfather."
Despite being in possession of this preliminary information,
the Antwerp courts entrusted the children, at first instance, to
the care of the notary under the supervision of his "mad" father.
In the course of the meeting with Professor [MA], Principal Crown
Counsel [YJ] also cast doubt on the notary's probity. Professor
[MA] gave the following evidence in his own defence before the
Ordre des {Medecins} [Medical Association]: "He (Principal Crown
Counsel) described how Mr X had been made a notary, against the
advice of the judicial bodies, on the last day in office of the
late Mr [ZK] (then Minister of Justice) and that, furthermore, in
a very short space of time (a few years) he had succeeded in
transforming an almost defunct practice into one with an official
profit of 32 million francs a year. He obviously doubted whether a
notary could make such an annual profit by legal and honest means
in view of the property crisis at the time, and thought he
remembered that Mr X had already been the subject of legal
proceedings at the time in connection with his activities as a
notary."
He was right. In 1984 the notary was even suspended by the
Disciplinary Board. Principal Crown Counsel's office (once again!)
took no account of that penalty. In the meantime a fresh criminal
complaint has been lodged against the notary alleging forgery.
The worst thing is the notary's publicly expressed Nazi
sympathies. A statement taken by Malines CID shows that he calls
the genocide of six million Jews an "American lie". At his wedding
the notary and his father gave the Nazi salute and struck up the
"Horst-Wessel Song" at the top of their voices.
But the notary goes much further. He wants to bring his
children up according to Hitler's principles. That is why they
must learn to bear pain and to endure humiliation and fear. Hitler
himself described a Hitlerite education:
"My educational philosophy is tough. The weak must be beaten
and driven out. My {elite} schools will produce young people whom
the world will fear. I want young people to be violent, imperious,
impassive, cruel. That is what young people should be like. They
must be capable of bearing pain. They must not show any weakness
or tenderness. Their eyes must shine with the brilliant, free look
of a beast of prey. I want my young people to be strong and
beautiful ... Then I can build something new."
There is little to add. Except to say that it is high time
that, in the interests of the children, the medical certificates,
the reports and evidence produced by the court expert, the bailiff
and the child psychiatrists should at last be taken seriously and
that a decision in this case be given on the basis of facts and
not on the basis of the influential status of one of the parties.
Public confidence in the judiciary is at stake."
The article was illustrated with what the applicants described
as photos of injuries sustained by "Wim" in May, two drawings said
to be by "Jan" and another said to be by "Wim"; it also contained
a transcript of part of Detective Sergeant [ZB]'s alleged
questioning of "Jan" on 6 March 1984.
22. On 6 November 1986 the fourth article by Mr De Haes and
Mr Gijsels appeared. It read as follows:
"...
Last Thursday the Wim and Jan case took a dramatic legal turn.
On an application by Principal Crown Counsel [YM], the Court of
Cassation withdrew the X case from the Antwerp court and
transferred it to the Ghent tribunal [de {premiere} instance] in
the hope that the Ghent magistrats would adopt a less biased
approach. It is certainly none too soon. The battle between the
legal and medical professions in the Wim and Jan case had reached
a climax. In a final attempt to make the Antwerp magistrats see
reason, four eminent experts sent a joint letter to Principal
Crown Counsel [YJ], declaring on their honour that they were 100%
convinced that Mr X's children were the victims of sexual and
physical abuse. The professional competence of these four experts
cannot be questioned - even by the Antwerp magistrats. They are
Professor [MD] (Professor of Paediatrics at UIA [Antwerp
University Institution], Medical Director of the Algemeen
Kinderziekenhuis Antwerpen and Director of the Antwerp
Vertrouwensartscentrum [medical reception centre for abused
children]); Professor [MC] (Professor of Paediatrics at Louvain
C[atholic] U[niversity], Head of the Gasthuisberg [University
Hospital] Paediatric Clinic in Louvain and President of the
National Council on Child Abuse); Professor [MA] (Professor of
Child and Youth Psychiatry at Gasthuisberg [Hospital], Louvain
C[atholic] U[niversity], who was appointed by Principal Crown
Counsel [YJ] to study the case); and Dr [MB] (a child psychiatrist
and psychoanalyst, appointed as an expert by the court).
With their letter they enclosed a note listing ten pieces of
evidence, any one of which on its own would, in any other case,
have led to criminal proceedings or even an arrest. The aim of
these scientists was clear. They were seeking from the courts a
temporary "protective measure" whereby the children would have
been admitted to one of the three [medical reception centres in
Flanders for abused children] pending a final court ruling. There
was no response. The relevant magistrats did not react. The Ordre
des {Medecins}, however, did - it forbade Professors [MA] and [MC]
to voice their opinions. Yet again the messenger is being shot
without anyone listening to the message.
Politicians also reacted. The Justice Minister, Jean Gol,
asked to see the file and is following the case closely but is
powerless to intervene because of the constitutional separation of
powers. And the MEPs Jef Ulburghs, Anne-Marie Lizin ... and Pol
Staes ... have laid a draft resolution before the European
Parliament requesting a proper investigation and urgent measures
to put an end to the children's dangerous predicament.
The public are finding the case harder and harder to
"swallow". The Justice Minister's office is inundated with dozens
of indignant letters. The weekly silent demonstrations on the
steps of the Antwerp law courts continue and last week, during
Monday night, posters were stuck up all over the centre of town
revealing Mr X's surname and forename. The poster campaign, which
aroused mixed feelings among journalists and lawyers, has given a
new dimension to the controversy surrounding the X case.
..."
23. On 27 November 1986 the applicants' fifth article
appeared. It read as follows:
"...
Our prediction of a fortnight ago that the agonisingly slow
progress being made in the Wim and Jan case was likely to leave
the case stranded in the Antwerp courts has come true. In the
teeth of all the evidence, the Court of Cassation has held that
the Antwerp judiciary cannot be accused of any bias in this incest
case and that the whole case can therefore continue to be dealt
with in Antwerp.
In parallel with the Court of Cassation's decision there have
been some remarkable events. The notary Mr X, so called in order
to protect the identities of Wim and Jan, now shows himself in
public and is giving interviews, sometimes even accompanied by his
children. The fact that his name (and therefore the names of his
little boys) now appears in the press does not appear to bother
him.
Another consequence is that the media are now breaking several
months' silence, and some editors have really gone off the rails.
It is very worrying, for example, that certain daily and
weekly newspapers are trying to play down the X case, depicting it
as a run-of-the-mill divorce case in which both parties are
hurling the most disgusting accusations at each other. In these
really not very cheering proceedings the "divorce" aspect is only
an insignificant detail, and moreover is quite another matter.
Indeed, we have not published a single word on that subject, nor
do we wish to do so, since it is a purely private matter.
The real issues in the case with which we are concerned are
very serious accusations of incest and child abuse, supported by
medical certificates and examinations, and the extremely
questionable manner in which those accusations are being dealt
with by the courts. This state of affairs is no longer part of two
people's private life but concerns us all. Moreover, the case of
Mr X is simply the tip of the iceberg and is representative of
other incest cases. It is for that reason, and that reason only,
that we have written about it.
In the meantime, certain daily and weekly newspapers are
indulging in the most unsavoury sensationalism and, without really
knowing the case, allowing the notary whole pages in which to
proclaim his version of the facts. Of course, freedom of
expression is sacred. But have we ever pushed Wim and Jan's mother
into the foreground? Have we ever published her opinion of the
case? No. Humo's reports on Wim and Jan have always been based on
our own investigations alone and on innumerable authentic
documents.
We have not written a single word that was not based on the
reports of doctors, paediatricians, court experts and a bailiff.
Since our first "Incest authorised in Flanders" article came out
as far back as 26 June, the notary's family has tried to get
Humo's management round the dinner table to "discuss" the case.
The editorial staff have always taken a consistent line: no
discussion - send us documents proving us wrong and we will
publish them. We also made this offer on [the television
programme] Argus, but up to now Mr X has not got round to sending
us his "equally numerous pieces of expert evidence in rebuttal".
For all his assertions in Knack and De Nieuwe Gazet that these
exist, it is strange that those papers' journalists have yet to
receive this rebutting evidence. All the notary has tried to do so
far is to muddy the waters and present the case as if it were a
matter of his word against his wife's, an argument along the lines
of "Oh no, I didn't" and "Oh yes, you did".
...
In the 5 November issue of Knack the notary reveals yet
another new discovery: the photographs were not taken by the
bailiff but by his ex-wife, and were faked with "red ointment". We
repeat: if the bruises were caused by falling downstairs, why
would they need to be faked with red ointment? It is true that his
wife took photographs, but in the presence of the bailiff. And
they were expressly annexed to the bailiff's report.
But irrespective of that, the relevant point is that the
bailiff did take photographs himself.
...
Nothing but red ointment? The whole thing rigged so as to be
more visible?
...
Besides, those are not the only photos of injuries to have
been taken. Dr [MC] also took numerous photographs of the injuries
and of an "abnormal irritation of the penis and the perianal
region", and they were annexed to his reports. There is no
evidence, the notary asserts. Will it really be necessary to
publish a photo of his little boys' sore anuses?
The court, for which the bailiff's report was drawn up and the
photographs taken, does not appear to have entertained any doubts
as to their authenticity and added them to the case file four
months ago without comment. With good reason. [ZM], the bailiff,
took the photos with a polaroid camera in the presence of
witnesses. That type of camera takes just seconds to produce a
photograph. It is not possible to tamper with them. Mr X knows
very well why he has not instituted proceedings against the
bailiff and why he has published his insinuations only in certain
newspapers and magazines.
This is not the first time that the notary has tried bluff
tactics. The following extract from Knack is telling: "He freely
admits that he has put pressure on several doctors, beaten up his
brother-in-law and, after receiving a tip-off from inside the Humo
editorial team, issued threats against Albert {Frere's} magazine
in order to try to get his name deleted from the articles, but he
does not see any of this as intimidation and considers that in his
unhappy situation, others would have behaved much worse."
The allegation that Mr X tried to have his name deleted from
Humo is one of his many lies. At that time he was asking for no
more and no less than complete censorship: the article was not to
be published! For our part, it has never for a moment even crossed
our minds to mention the name of the notary and his family. That
name has therefore never appeared in a single draft, not even a
preliminary one. For Humo it has never been a matter of attacking
an individual (and in this connection we dissociate ourselves
completely from the billposters who are plastering the notary's
name all over Antwerp) but of the dubious way in which the case
has been handled.
...
Mr X delights in telling everyone that he knows that the
courts and the officially appointed experts are on his side. "He
told us that the report by the three experts from the AKA
(appointed by the Youth Court judge [YL] - Ed.) would be published
on Wednesday, but that he could already reveal that the report
proves his total innocence" (Algemeen Dagblad, 1.11.86).
"This week he hopes to distribute the reports by Dr [MI],
Dr [MK] and Dr [MJ], appointed as experts by the Youth Court a
year ago(!). "They are unanimous and totally favourable to me" [he
says] ..." (Knack, 5.11.86)
Mr X was so positive that we fell into the trap (see our
previous article) of believing that the reports cleared him of all
suspicion. Since at that point the reports had not been filed, we
asked: "Does the notary have a hitherto unsuspected gift of
clairvoyance or has he had an opportunity to consult the reports
even before they are filed with the Youth Court?"
We don't know. But what we do know is that in his interviews
the notary is cocking a snook at the truth. The three reports are
not entirely favourable to him. The conclusions of the report by
the psychiatrist [MK], wholly confused though they indeed are,
explicitly indicate that the evidence on the case file raises a
strong presumption of sexual and physical abuse but that there is
no absolute, irrefutable proof. Using the conditional mood, [MK]
adds that Wim and Jan's stories could have been the product of
"coaching", not to say spoon-feeding, by the mother. In other
words, [MK] is saying that in fact he doesn't know. At all events,
one can hardly say that this report is entirely favourable to
Mr X. The notary has also lied to the press about other things.
According to him, the children are afraid of Malines, the mother's
environment - whereas according to [MK]'s report, one of the
children is very positive towards his mother and very negative
towards his father. The other child sometimes would prefer to stay
in Antwerp and at other times to live in Malines. Moreover, [MK]'s
opinion is that the children should be placed with a foster
family, with access for both parents.
Last week Dr [MJ]'s expert report also came in. A key witness
in relation to the ill-treatment of 16 May, [MJ] concludes that it
never took place. Yet another sample of the expert's wisdom: on
the one hand, he states in his report that the children want to
stay with their mother but, on the other, he recommends placing
them with the father after the divorce, with limited access for
the mother. As an immediate step, he recommends, just like [MK],
that the children should be placed in a neutral setting, with
generous access for both parents. No doubt you have to be an
expert in order to understand so many contradictions.
...
In contrast to the contradictory and inconsistent reports of
these doctors, there are the irrefutable, unequivocal reports of
Professor [MA]:
"Given that the children have again been subjected to sexual
abuse by their father, I consider that any further contact between
the father and the children would for the time being be extremely
prejudicial to the children's subsequent development, and the
situation is particularly dangerous for them in that their mental
development and that of their personalities are seriously
jeopardised. This being so, I consider it necessary to intervene
as a matter of urgency under section 36 (2) (children at risk) of
the Child Protection Act." (August 1984)
The court expert [MB], appointed by the investigating judge
[YE], stated:
"All the examinations of Wim and Jan lead to the same
conclusion: the two children describe sexual contact with Daddy.
Wim is in the midst of assimilating the psychological trauma into
his subconscious. For Jan this process of assimilation is more
difficult. The children's statements appear credible and I have
set out a series of arguments on this point." (August 1984)
Dr [MC], who has examined the children twenty-two times (and
not twelve as the notary, lying again, states in De Nieuwe Gazet)
and has found non-accidental injuries on seventeen occasions,
states:
"In the interests of the two children there should be an
immediate court order withdrawing them totally and permanently
from their father's orbit. Any further delay would be medically
unjustifiable." (May 1986)
It remains a disgrace that the Antwerp courts refuse to take
this evidence into account."
The article was illustrated with two other drawings said to be
by the children; it also contained what the applicants said was an
extract from a report by the bailiff [ZM] describing bruises on
both legs of the younger boy.
24. Following the judgment of 29 September 1988 (see
paragraph 11 above) Mr De Haes and Mr Gijsels published an article
on 14 October 1988 that contained the following:
"...
On 29 September the Brussels tribunal de {premiere} instance
gave judgment in the case brought against Humo by the judges of
the Antwerp Court of Appeal as a result of our articles about the
notary Mr X. Humo lost all along the line. This judgment is not
only desperately short on reasoning but also completely
unsatisfactory. The Vice-President, [YF], and the other judges,
[YG] and [YH], dealt with the case carelessly. They were not
willing to listen to Humo's very strong arguments, while the
debate about the relationship between the media and the judiciary,
which was important for the press as a whole, was purely and
simply brushed aside. We wonder whether their Lordships actually
read Humo's submissions.
The Brussels tribunal de {premiere} instance chose the easy
way out, holding it against us that the "insinuations and
offensive accusations" against the judges "have no foundation
except gossip and malicious distortions". What the whole of
Flanders knows, except apparently Messrs [YF], [YG] and [YH], is
that our doubts as to the integrity of the Antwerp Court of Appeal
magistrats were (and still are) based on a number of medical
reports, which we have always cited verbatim, so there can be no
question of malicious distortion. Are journalists acting
unlawfully where they confine themselves to verbatim extracts from
medical reports and to known and proved facts?
We are also accused of sullying the Antwerp judges' private
lives. But at no time has Humo ever brought up anything to do with
the judges' private lives. We have kept, strictly and
deliberately, to those matters that were directly linked to the
case and were capable of verification in history books and press
articles. How can matters which are so manifestly and indisputably
in the public domain suddenly be considered aspects of private
life?
Further on in the reasons for their judgment, Judges [YF],
[YG] and [YH] say bluntly that we "[accept] as true, without more,
the statement made by Mr X's former wife and her expert adviser
(Professor [MA])". We care not a jot about Mr X's former wife's
statement. We have always concentrated solely on the medical
findings and reports of innumerable doctors.
Yet the tribunal de {premiere} instance simply skirts round
these facts.
Furthermore, one of the essential aspects of Mr X's case has
cleverly been evaded: the conflict between the medical profession
and the judiciary. Journalists have a duty to strive "to respect
the truth", says the court - a dictum to which we gladly
subscribe, but judges are under the same duty.
The judgment of the tribunal de {premiere} instance becomes
positively Kafkaesque when it attacks the medical reports by
simply referring to the judgments of the Court of Appeal judges,
who deliberately failed to take those reports seriously -
precisely the attitude that Humo has condemned. For which we had
our reasons. But what do the judges of the Brussels tribunal de
{premiere} instance do? They use their fellow judges' judgments as
evidence against Humo. In other words, the truth is to be found
only in the judgments of the Antwerp judges. If that is the case,
anyone who challenges a judgment, including in the press, runs the
risk of being put in the wrong since a judge is always right. It
is not the truth but "the official truth and nothing but the
official truth" which will be published in our newspapers in
future. Is that what people want?
Clearly, the Brussels judges [YF], [YG] and [YH], did not
manage to give judgment with the necessary detachment and
independence on their fellow judges of the Antwerp Court of
Appeal. They are thus adhering to the line of biased judgments
which we have condemned in the case of Mr X. Humo will accordingly
be appealing against this judgment."
II. Relevant domestic law
25. The first paragraph of the former Article 18 (currently
Article 25) of the Constitution provides:
"The press shall be free; there shall never be any censorship;
no security can be demanded of writers, publishers or printers."
26. The relevant provisions of the Civil Code are worded as
follows:
Article 1382
"Any act committed by a person that causes damage to another
shall render the person through whose fault the damage was caused
liable to make reparation for it."
Article 1383
"Everyone shall be liable for damage he has caused not only
through his own act but also through his failure to act or his
negligence."
According to legal writers and the case-law, an offence
against the criminal law constitutes per se a fault within the
meaning of Article 1382 of the Civil Code (see L. Cornelis,
Beginselen van het Belgische buitencontractuele
aansprakelijkheidsrecht, p. 62, no. 41; judgments of the Court of
Cassation of 31 January 1980 (Pasicrisie 1980, I, p. 622) and
13 February 1988 (Rechtskundig Weekblad 1988 - 89, col. 159)).
Articles 1382 and 1383 of the Civil Code accordingly provide a
basis for civil proceedings for abuse of freedom of the press
(judgment of the Court of Cassation of 4 December 1952, Pasicrisie
1953, I, p. 215). A publication is regarded as being an abuse
where it breaches a criminal provision (without it being
necessary, however, for all the ingredients of the offence to have
been made out); disseminates ill-considered accusations without
sufficient evidence; employs gratuitously offensive terms or
exaggerated expressions; or fails to respect private life or the
individual's privacy.
27. Articles 443 to 449 and 561, 7, of the Criminal Code make
defamation and insults punishable. By Article 450, these offences,
where committed against individuals, can be prosecuted only on a
complaint by the injured party or, if that person has died, his
spouse, descendants or statutory heirs up to and including the
third degree. Articles 275 and 276 of the same Code make it a
punishable offence to insult members of the ordinary courts.
PROCEEDINGS BEFORE THE COMMISSION
28. Mr De Haes and Mr Gijsels applied to the Commission on
12 March 1992. They alleged that the judgments against them had
infringed their right to freedom of expression as guaranteed in
Article 10 of the Convention (art. 10) and that it had been based
on an erroneous interpretation of Article 8 (art. 8). They also
maintained that they had not had a fair trial by an independent
and impartial tribunal within the meaning of Article 6 (art. 6).
29. The Commission declared the application (no. 19983/92)
admissible on 24 February 1995. In its report of 29 November 1995
(Article 31) (art. 31), it expressed the opinion that there had
been a violation of Article 10 (art. 10) (six votes to three) and
Article 6 (art. 6) (unanimously) of the Convention but not of
Article 8 (art. 8). The full text of the Commission's opinion and
of the two dissenting opinions contained in the report is
reproduced as an annex to this judgment <3>.
--------------------------------
Note by the Registrar
<3> For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions 1997-I), but a copy of the Commission's report is
obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT
30. In their memorial the Government asked the Court to "hold
that there ha[d] been no violation of Articles 6 and 10 of the
Convention (art. 6, art. 10)".
31. In their memorial the applicants asked the Court to "hold
that there ha[d] been a violation of Article 10 and Article 6 of
the Convention (art. 10, art. 6)".
AS TO THE LAW
I. Alleged violation of Article 10 of the Convention
(art. 10)
32. The applicants alleged that the judgment of the Brussels
tribunal de {premiere} instance and Court of Appeal against them
had entailed a breach of Article 10 of the Convention (art. 10),
which provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article (art. 10)
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
33. The judgment against the applicants indisputably amounted
to an "interference" with their exercise of their freedom of
expression. It was common ground that the interference had been
"prescribed by law" and had pursued at least one of the legitimate
aims referred to in Article 10 para. 2 (art. 10-2) - the
protection of the reputation or rights of others, in this instance
the rights of the judges and Advocate-General who brought
proceedings.
The Court agrees. It must therefore ascertain whether the
interference was "necessary in a democratic society" for achieving
that aim.
34. Mr De Haes and Mr Gijsels pointed out that their articles
had been written against the background of a public debate,
reported by other newspapers, on incest in Flanders and on the way
in which the judiciary was dealing with the problem. Before
writing them, they had undertaken sufficient research and sought
the opinion of several experts, and that had enabled them to base
the articles on objective evidence. The only reason why they had
not produced that evidence in court was that they had not wished
to disclose their sources of information. The refusal of the
Brussels courts of first instance and appeal to admit in evidence
the documents they had mentioned had accordingly in itself
entailed a breach of Article 10 (art. 10).
Their criticisms of the judges and Advocate-General concerned
could not, they continued, justify a penalty merely on the ground
that the criticisms were at odds with decisions of the Antwerp
Court of Appeal. The determination of the "judicial truth" in a
court decision did not mean that any other opinion had to be
considered wrong when the exercise of the freedom of the press was
being reviewed. That, however, was exactly what had happened in
the instant case, although the impugned articles had been based on
sufficient objective information. In short, the interference
complained of had not been necessary in a democratic society.
35. The Commission accepted this argument in substance.
36. The Government maintained that, far from stimulating
discussion of the functioning of the system of justice in Belgium,
the impugned press articles had contained only personal insults
directed at the Antwerp judges and Advocate-General and had
therefore not deserved the enhanced protection to which political
views were entitled. No immunity could be claimed for opinions
expressed by journalists merely on the ground that the accuracy of
those opinions could not be verified. In the instant case the
authors of the articles had incurred a penalty for having exceeded
the limits of acceptable criticism. It would have been quite
possible to challenge the way the courts had dealt with Mr X's
cases without at the same time making a personal attack on the
judges and Advocate-General concerned and accusing them of bias
and of showing "a lack of independence". In that connection, it
also had to be borne in mind that the duty of discretion laid upon
magistrats prevented them from reacting and defending themselves
as, for example, politicians did.
37. The Court reiterates that the press plays an essential
role in a democratic society. Although it must not overstep
certain bounds, in particular in respect of the reputation and
rights of others, its duty is nevertheless to impart - in a manner
consistent with its obligations and responsibilities - information
and ideas on all matters of public interest, including those
relating to the functioning of the judiciary.
The courts - the guarantors of justice, whose role is
fundamental in a State based on the rule of law - must enjoy
public confidence. They must accordingly be protected from
destructive attacks that are unfounded, especially in view of the
fact that judges are subject to a duty of discretion that
precludes them from replying to criticism.
In this matter as in others, it is primarily for the national
authorities to determine the need for an interference with the
exercise of freedom of expression. What they may do in this
connection is, however, subject to European supervision embracing
both the legislation and the decisions applying it, even where
they have been given by an independent court (see, mutatis
mutandis, the Prager and Oberschlick v. Austria judgment of
26 April 1995, Series A no. 313, pp. 17 - 18, paras. 34 - 35).
38. The Court notes at the outset that the judgment against
the applicants was based on all the articles published by them
between 26 June and 27 November 1986 on the subject of the X case.
This must be taken into account for the purpose of assessing
the scale and necessity of the interference complained of.
39. The articles contain a mass of detailed information about
the circumstances in which the decisions on the custody of Mr X's
children were taken. That information was based on thorough
research into the allegations against Mr X and on the opinions of
several experts who were said to have advised the applicants to
disclose them in the interests of the children.
Even the Antwerp Court of Appeal considered that Mr X's wife
and parents-in-law, who had been prosecuted for criminal libel,
"had no good reason to doubt the truth of the allegations" in
question (see paragraph 8 above).
That being so, the applicants cannot be accused of having
failed in their professional obligations by publishing what they
had learned about the case. It is incumbent on the press to impart
information and ideas of public interest. Not only does the press
have the task of imparting such information and ideas: the public
also has a right to receive them (see, among other authorities,
the Jersild v. Denmark judgment of 23 September 1994, Series A
no. 298, p. 23, para. 31, and the Goodwin v. the United Kingdom
judgment of 27 March 1996, Reports of Judgments and Decisions
1996-II, p. 500, para. 39). This was particularly true in the
instant case in view of the seriousness of the allegations, which
concerned both the fate of young children and the functioning of
the system of justice in Antwerp. The applicants, moreover, made
themselves quite clear in this regard when they wrote in their
article of 18 September 1986: "It is not for the press to usurp
the role of the judiciary, but in this outrageous case it is
impossible and unthinkable that we should remain silent" (see
paragraph 21 above).
40. It should be noticed, moreover, that the judges and
Advocate-General who brought proceedings did not, either in their
writ or in their submissions to the Brussels courts of first
instance and appeal, cast doubt on the information published about
the fate of the X children, other than on the statement that the
case in question had been withdrawn from the Antwerp courts (see
paragraphs 22 and 23 above). However, the weight of the latter
item in comparison with the impugned articles as a whole and the
fact that the applicants corrected it themselves, mean that, on
its own, that incident cannot put in doubt the reliability of the
journalists' work.
41. In actual fact the judges and Advocate-General complained
mainly of the personal attacks to which they considered they had
been subjected in the journalists' comments on the events in the
custody proceedings in respect of the X children. The applicants,
in accusing them of marked bias and cowardice, had, they
maintained, made remarks about them that were defamatory and
constituted an attack on their honour. The applicants had
furthermore accused two of them of pronounced extreme-right-wing
sympathies and had thus grossly infringed their right to respect
for their private life.
The Brussels courts accepted that contention in substance (see
paragraphs 11 and 14 above). The Court of Appeal essentially found
the applicants guilty of having made unproved statements about the
private life of the judges and Advocate-General who had brought
proceedings and of having drawn defamatory conclusions by alleging
that they had not been impartial in their handling of the case of
the X children. Its judgment says:
"In the instant case the appellants dared to go one step
further by maintaining, without a shred of evidence, that they
were entitled to infer the alleged bias from the very
personalities of the judges and the Advocate-General and thus
interfere with private life, which is without any doubt unlawful.
Furthermore, the purpose of the present proceedings is not to
decide what ultimately was the objective truth in the case that
the original plaintiffs finally determined at the time but merely
whether the comments in issue are to be considered defamatory,
which is not in the slightest doubt." (see paragraph 14 above)
42. The Court reiterates that a careful distinction needs to
be made between facts and value judgments. The existence of facts
can be demonstrated, whereas the truth of value judgments is not
susceptible of proof (see the Lingens v. Austria judgment of
8 July 1986, Series A no. 103, p. 28, para. 46).
43. As regards, firstly, the statements concerning the
political sympathies of the judges and Advocate-General who
brought proceedings, it must be noted that the Brussels Court of
Appeal held:
"Even if the appellants believed that certain ideological
views could be ascribed to the respondents (views which they have
failed to prove that the respondents held), they cannot in any
event be permitted purely and simply to infer from those views -
even if they had been proved - that the judges and the
Advocate-General were biased and to criticise that bias in
public." (see paragraph 14 above)
It is apparent from this that even if the allegations in
question had been accurate, the applicants would not have escaped
being found liable since that finding related not so much to the
allegations reported as to the comments which these inspired the
journalists to make.
44. Added to the information which the applicants had been
able to gather about Mr X's behaviour towards his children,
information which was in itself capable of justifying the
criticism of the decisions taken by or with the aid of the judges
and Advocate-General concerned, the facts which they believed they
were in a position to allege concerning those persons' political
sympathies could be regarded as potentially lending credibility to
the idea that those sympathies were not irrelevant to the
decisions in question.
45. One of the allusions to the alleged political sympathies
was inadmissible - the one concerning the past history of the
father of one of the judges criticised (see paragraph 19 above).
It is unacceptable that someone should be exposed to opprobrium
because of matters concerning a member of his family. A penalty
was justifiable on account of that allusion by itself.
It was, however, only one of the elements in this case. The
applicants were convicted for the totality of the accusations of
bias they made against the three judges and the Advocate-General
in question.
46. In this connection, the Court reiterates that freedom of
expression is applicable not only to "information" or "ideas" that
are favourably received or regarded as inoffensive or as a matter
of indifference but also to those that offend, shock or disturb
the State or any section of the community. In addition,
journalistic freedom also covers possible recourse to a degree of
exaggeration, or even provocation (see, mutatis mutandis, the
Prager and Oberschlick judgment cited above, p. 19, para. 38).
47. Looked at against the background of the case, the
accusations in question amount to an opinion, whose truth, by
definition, is not susceptible of proof. Such an opinion may,
however, be excessive, in particular in the absence of any factual
basis, but it was not so in this instance; in that respect the
present case differs from the Prager and Oberschlick case (see the
judgment cited above, p. 18, para. 37).
48. Although Mr De Haes and Mr Gijsels' comments were without
doubt severely critical, they nevertheless appear proportionate to
the stir and indignation caused by the matters alleged in their
articles. As to the journalists' polemical and even aggressive
tone, which the Court should not be taken to approve, it must be
remembered that Article 10 (art. 10) protects not only the
substance of the ideas and information expressed but also the form
in which they are conveyed (see, as the most recent authority, the
Jersild judgment cited above, p. 23, para. 31).
49. In conclusion, the Court considers that, regard being had
to the seriousness of the circumstances of the case and of the
issues at stake, the necessity of the interference with the
exercise of the applicants' freedom of expression has not been
shown, except as regards the allusion to the past history of the
father of one of the judges in question (see paragraph 45 above).
There has therefore been a breach of Article 10 (art. 10).
II. Alleged violation of Article 6 para. 1
of the Convention (art. 6-1)
50. The applicants also complained of a breach of Article 6
para. 1 of the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by an ... impartial
tribunal ..."
They firstly criticised the Brussels tribunal de {premiere}
instance and Court of Appeal for having refused to admit in
evidence the documents referred to in the impugned articles or
hear at least some of their witnesses (see paragraphs 10 and 12
above). This, they said, had resulted in a basic inequality of
arms between, on the one hand, the judges and the
Advocate-General, who were familiar with the file, and, on the
other, the journalists, who with only limited sources had had to
reconstruct the truth.
Further, in arguing against Mr De Haes and Mr Gijsels on the
basis of their article of 14 October 1988 (see paragraph 24
above), the Brussels Court of Appeal had ruled on matters not
before it as the judges criticised in that article were not
parties to the case before the Court of Appeal and their decision
had not been mentioned in the original writ. The Court of Appeal
had thus taken as a basis a fact that had not been the subject of
adversarial argument and had thereby departed from due process.
Lastly, the derogatory terms used in the Brussels Court of
Appeal's judgment showed that there had been a lack of subjective
impartiality.
51. The Commission shared, in substance, the applicants'
opinion as to the effects of the alleged breaches on equality of
arms and due process. It did not consider it necessary to express
a view on the Brussels Court of Appeal's impartiality.
52. The Government submitted that the evidence which the
journalists proposed to submit had been calculated to call in
question the decisions taken in the lawsuit between Mr X and his
wife, which was res judicata. The Brussels courts had therefore
been entitled to reject it, seeing that the "judicial truth" was
sufficiently clear from the judgments delivered in Mr X's cases.
In short, production of the evidence in question had been shown
not to be decisive in the instant case, and the Court of Cassation
had confirmed that.
As to the Court of Appeal's reference to the press article of
14 October 1988, it was a superfluous reason, as the judgment
against the applicants rested primarily on other grounds. The
reference to that article in the submissions of the judges and
Advocate-General who had brought proceedings was not intended to
amend their claim but simply to highlight Mr De Haes and Mr
Gijsels' relentless hostility.
53. The Court reiterates that the principle of equality of
arms - a component of the broader concept of a fair trial -
requires that each party must be afforded a reasonable opportunity
to present his case under conditions that do not place him at a
substantial disadvantage {vis-a-vis} his opponent (see, among
other authorities, the Ankerl v. Switzerland judgment of
23 October 1996, Reports 1996-V, pp. 1565 - 66, para. 38).
54. It notes that in their submissions to the Brussels courts
of first instance and appeal the judges and Advocate-General
concerned maintained, in substance and inter alia, that the
criticisms made of them in Humo were not supported by the facts of
the case and certainly not by the four judgments that had been
delivered by them or with their aid in that case, which were
otherwise uncontradicted. They thus referred, in order to deny
that there was any basis for the journalists' argument, to the
content of the case they had themselves dealt with and of the
relevant judgments.
Coming as it did from the judges and Advocate-General who had
handled the case, that statement had such credibility that it
could hardly be seriously challenged in the courts if the
defendants could not adduce at least some relevant documentary or
witness evidence to that end.
55. In this respect, the Court does not share the Brussels
Court of Appeal's opinion that the request for production of
documents demonstrated the lack of care with which Mr De Haes and
Mr Gijsels had written their articles. It considers that the
journalists' concern not to risk compromising their sources of
information by lodging the documents in question themselves was
legitimate (see, mutatis mutandis, the Goodwin judgment cited
above, p. 502, para. 45). Furthermore, their articles contained
such a wealth of detail about the fate of the X children and the
findings of the medical examinations they had undergone that it
could not reasonably be supposed, without further inquiry, that
the authors had not had at least some relevant information
available to them.
56. It should also be noted that the journalists' argument
could hardly be regarded as wholly unfounded, since even before
the judges and the Advocate-General brought proceedings against
the applicants, the Antwerp tribunal de {premiere} instance and
Court of Appeal had held that the defendants in the libel action
Mr X had brought against his wife and parents-in-law had not had
any good reason to doubt the truth of their allegations (see
paragraph 8 above).
57. At all events, the proceedings brought against the
applicants by the judges and the Advocate-General did not relate
to the merits of the judgment in the X case but solely to the
question whether in the circumstances the applicants had been
entitled to express themselves as they had. It was not necessary
in order to answer that question to produce the whole file of the
proceedings concerning Mr X but only documents which were likely
to prove or disprove the truth of the applicants' allegations.
58. It was in those terms that Mr De Haes and Mr Gijsels made
their application. They asked the Brussels tribunal de {premiere}
instance and Court of Appeal at least to study the opinion of the
three professors whose examinations had prompted the applicants to
write their articles (see paragraph 10 above). The outright
rejection of their application put the journalists at a
substantial disadvantage {vis-a-vis} the plaintiffs. There was
therefore a breach of the principle of equality of arms.
59. That finding alone constitutes a breach of Article 6
para. 1 (art. 6-1). The Court consequently considers it
unnecessary to examine the other complaints raised by the
applicants under that provision (art. 6-1).
III. Application of Article 50 of the Convention
(art. 50)
60. Article 50 of the Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting Party
is completely or partially in conflict with the obligations
arising from the ... Convention, and if the internal law of the
said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the injured
party."
A. Pecuniary damage
61. The applicants sought 113,101 Belgian francs (BEF) in
respect of pecuniary damage. That sum corresponded to the cost of
publishing the Brussels Court of Appeal's judgment of 5 February
1990 in Humo, plus "one franc on account" for the publication of
the same judgment in six daily newspapers, which has not yet taken
place.
62. No observations were made by either the Delegate of the
Commission or the Government.
63. As the publishing of the judgment was a direct consequence
of the wrongful finding against Mr De Haes and Mr Gijsels, the
Court considers the claim justified.
B. Non-pecuniary damage
64. The journalists also sought compensation in the amount of
BEF 500,000 each for non-pecuniary damage caused by the adverse
publicity and the psychological ordeals which followed their
conviction.
65. The Government considered that the Court's judgment would
be sufficient redress for that damage.
The Delegate of the Commission did not express a view.
66. In the Court's opinion, the Belgian courts' decisions
against the applicants must have caused them certain
unpleasantnesses. The finding of a breach of the Convention,
however, affords sufficient just satisfaction in this regard.
C. Costs and expenses
67. Mr De Haes and Mr Gijsels sought BEF 851,697 in respect of
the costs and expenses relating to their legal representation,
namely: BEF 332,031 for the proceedings in the domestic courts and
BEF 519,666 for those before the Convention institutions,
including BEF 179,666 for translation expenses.
68. No observations were made by either the Delegate of the
Commission or the Government.
69. That being so, the Court allows the claim.
D. Default interest
70. According to the information available to the Court, the
statutory rate of interest applicable in Belgium at the date of
adoption of the present judgment is 7% per annum.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has been a breach of
Article 10 of the Convention (art. 10);
2. Holds unanimously that there has been a breach of Article 6
para. 1 of the Convention (art. 6-1);
3. Holds unanimously that the respondent State is to pay the
applicants, within three months, 113,101 (one hundred and thirteen
thousand, one hundred and one) Belgian francs in respect of
pecuniary damage and 851,697 (eight hundred and fifty-one
thousand, six hundred and ninety-seven) francs for costs and
expenses, on which sums simple interest at an annual rate of 7%
shall be payable from the expiry of the above-mentioned three
months until settlement;
4. Holds unanimously that the present judgment in itself
constitutes sufficient just satisfaction in respect of
non-pecuniary damage.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 24 February
1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Matscher;
(b) partly dissenting opinion of Mr Morenilla.
Initialled: R. R.
Initialled: H. P.
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
I am unable to agree with the majority of the Chamber in so
far as it finds a breach of Article 10 (art. 10).
Although I fully endorse what the Chamber says on the subject
of freedom of expression, and in particular about the importance
of freedom of the press in a democratic society, I believe that
the Chamber has failed to recognise the limits that this freedom
entails, which are also of importance in a civilised democratic
society. Indeed, the reference in the second paragraph of
Article 10 (art. 10-2) to the "duties and responsibilities"
inherent in freedom of the press seems to carry little weight in
the Court's case-law.
Applying these principles to the present case, I would make
the following observations.
The applicants were entitled to criticise the decision of the
Antwerp Court of Appeal awarding Mr X custody of his children
since the objective information available to them justified the
severest censure of that decision; having regard to the
circumstances of the case, it was indeed legitimate to ask how the
judges in question could have taken such a decision.
What I find fault with in the press articles that gave rise to
the decision imposing a penalty on the applicants - albeit a
nominal one - is the insinuation that the judges who gave that
decision had deliberately acted in bad faith because of their
political or ideological sympathies and thus breached their duty
of independence and impartiality, all with the aim of protecting
someone whose political ideas appeared to be similar to those of
the judges concerned. Nothing justified such an insinuation, even
if it had been possible to discover the impugned judges' political
opinions.
In those circumstances, the interference constituted by the
judgment against the applicants was "necessary" within the meaning
of the second paragraph of Article 10 (art. 10-2) and was not
disproportionate.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. To my regret, I cannot agree with the majority's conclusion
as to the breach of Article 10 of the Convention (art. 10) in this
case. In my opinion, the Belgian civil courts' judgment against
the applicants for defamation was necessary in a democratic
society and proportionate within the meaning of paragraph 2 of
Article 10 (art. 10-2).
In the impugned judgments - of the Brussels tribunal de
{premiere} instance, the Brussels Court of Appeal and the Court of
Cassation - the defendants, Mr De Haes and Mr Gijsels, who are
journalists, were found to have acted unlawfully. They were
ordered to pay each of the four plaintiffs - three judges and an
Advocate-General at the Antwerp Court of Appeal - one franc in
respect of non-pecuniary damage suffered and to publish the
relevant decision in full in the weekly magazine Humo, in which
they had published five articles between July and November 1986
criticising judgments given by the Third Division of that court in
terms which the members of that division described as defamatory.
The plaintiffs were also given leave to have the judgment
published in six daily newspapers at the applicants' expense.
The decisions criticised by the applicants had been given in
divorce proceedings in which the Court of Appeal had awarded the
father custody of his children despite allegations by the mother
that he had committed incest with them and subjected them to
abuse.
2. Like the majority, I take the view that the impugned
judgments undoubtedly amounted to an interference with the
applicants' exercise of their right to freedom of expression,
including freedom to hold opinions and the right to impart
information, which is enshrined in Article 10 of the Convention
(art. 10). That interference was provided for in Articles 1382 et
seq. of the Belgian Civil Code and pursued the aim of protecting
the reputation of others - in this instance the reputation of the
judges of the division of the Court of Appeal that had delivered
the judgment - and maintaining the authority and impartiality of
the judiciary, legitimate aims under Article 10 para. 2 of the
Convention (art. 10-2).
3. The necessity of the judgment against the applicants in a
democratic society is therefore the final condition that the
interference has to satisfy in order to be regarded as justified
under paragraph 2 of Article 10 of the Convention (art. 10-2). It
is also the only ground for my dissent from the majority, who
considered that the measure was neither necessary nor
proportionate in view of the fundamental role of the press in a
State governed by the rule of law and the relevance, in principle,
of criticism of the functioning of the system of justice.
4. In my view, however, the articles in question contained, in
addition to criticism of the judicial decision on the custody of
the children in the divorce proceedings, assessments of the
Belgian judicial system in general and the political opinions of
members of the Antwerp Court of Appeal, whose names were given,
and details of the past of the father of one of the judges. They
attributed to the judges and the Advocate-General political ideas
similar to those of the father who had been awarded custody. I
consider these comments to have been very offensive to the Belgian
judiciary and defamatory of the judges and Advocate-General at the
Court of Appeal. The latter were intentionally accused by the
applicants of having taken unjust decisions because of their
friendship or their political affinities with one of the parties
to the proceedings, and that amounts to an accusation of
misfeasance in public office.
5. The articles contained expressions such as "Two children
crushed between the jaws of blind justice. Incest authorised in
Flanders" or "Most of the judges of the Third Division of the
Court of Appeal, who awarded custody to the notary, also belong to
extreme-right-wing circles. Judge [YB] is the son of a bigwig in
the gendarmerie who was convicted in 1948 of collaboration ... It
just so happens that Principal Crown Counsel [YJ] has the same
political sympathies as the X family" (first article, of 26 June
1986). "[H]alf Flanders is shocked by such warped justice." "This
kind of brutal pressurising seems to "work" very well within the
system of justice." "Thanks to the fresh data, we now have an even
better picture of how often and how treacherously the courts have
manipulated the case" (second article, of 17 July 1986). "[T]he
ultimate guarantee of our democracy, an independent system of
justice, has been undermined at its very roots" (third article, of
18 September 1986). "It remains a disgrace that the Antwerp courts
refuse to take this evidence into account" (fifth article, of
27 November 1986).
6. In another case concerning the conviction of a journalist
and a publisher for defamation of a judge, similar to the present
case, albeit in criminal proceedings, the case of Prager and
Oberschlick v. Austria (judgment of 26 April 1995, Series A
no. 313), the Court stressed the need to strike the correct
balance between the role of the press in imparting information on
matters of public interest, such as the functioning of the system
of justice, and the protection of the rights of others and "the
special role of the judiciary in society", where "as the guarantor
of justice, a fundamental value in a law-governed State, it must
enjoy public confidence if it is to be successful in carrying out
its duties" (paragraph 34).
7. These features of freedom of the press not only are
compatible with freedom of expression but also confer on it the
objectivity required to ensure truthful and serious reporting of
the functioning of the system of justice. As the Court said in the
Prager and Oberschlick case, "[i]t may therefore prove necessary
to protect such confidence against destructive attacks that are
essentially unfounded, especially in view of the fact that judges
who have been criticised are subject to a duty of discretion that
precludes them from replying" (ibid.).
8. In the same judgment the Court also said: "The assessment
of these factors falls in the first place to the national
authorities, which enjoy a certain margin of appreciation in
determining the existence and extent of the necessity of an
interference with the freedom of expression." However, this margin
of appreciation is subject to European supervision (paragraph 35).
In reviewing its compatibility with the Convention, the Court must
have regard to the fact that "the press is one of the means by
which politicians and public opinion can verify that judges are
discharging their heavy responsibilities in a manner that is in
conformity with the aim which is the basis of the task entrusted
to them" (paragraph 34).
9. In my opinion, the decision on how to classify the extracts
mentioned in the impugned judgments concerning the lack of
impartiality of the judges and the Advocate-General at the Antwerp
Court of Appeal and the statements regarding the Belgian system of
justice lies within the margin of appreciation of the national
courts. The statements made by the applicants amounted to value
judgments on the political ideas of the judges and
Advocate-General in question or on the influence that those ideas
and family background had on the decision commented upon. Such
value judgments were not susceptible of proof and could not
justify the accusation of bias on the part of the judges or the
sweeping nature of the accusations or the virulence and
contemptuousness of the terms employed.
10. The judicial decisions complained of were based not on the
criticism of the "objective truth" of the facts established in the
divorce proceedings or on the lawfulness of the decisions taken by
the judges, but on the dishonouring statements contained in the
articles. The journalists nevertheless raised important questions
relating to the criticism of the functioning of the system of
justice and the courts ought to have considered them in full and
ruled on them in their judgments. This defect does not, in my
view, invalidate the judgment against the applicants for
defamation, since that judgment was in fact based on the offensive
statements used in their articles. The defect goes to the breach
of Article 6 (art. 6), which the Court found unanimously.
11. In the strict context of the impugned decisions, I
consider that the Belgian civil courts' finding that the terms
employed and statements made in the articles had undermined the
reputation for impartiality of the judges who had given the
judgment on appeal and the authority and independence of the
judiciary was in conformity with Article 10 para. 2 of the
Convention (art. 10-2), as was the relief afforded to the
plaintiffs on this account.
|
